When natural disasters such as Hurricane Harvey strike, work may not be the first thought for those hurt and those wanting to help, but it’s not far down the list of concerns. Getting back to work is an important part of getting back to normal for many storm victims. And those not in the path of destruction often want to join their coworkers and employers in relief efforts.
When Harvey made landfall on August 25 and continued to roar through Houston and other areas in Texas and Louisiana for days afterward, many scrambled to help, including employers. In spite of the emergency, though, it’s important for employers to keep their obligations regarding pay, worker safety, and other issues in mind.
H. Mark Adams and Jennifer L. Anderson are attorneys with Jones Walker LLP in Louisiana and editors of Louisiana Employment Law Letter. They experienced Hurricane Katrina in 2005, and they put together a guide for employers then that they have posted again on the firm’s website in the wake of Harvey. “Its advice is timeless, goes beyond the legal issues to the human issues and is as cogent as ever,” Adams says.
The guide offers a number of tips for employers. Among them:
- Communicate with employees as soon as possible after a disaster to let them know the company’s status and plans.
- Keep the company’s leadership visible so that employees know who is in charge of each part of the employer’s response or recovery efforts.
- Give managers and supervisors the tools they need to help employees cope with the effects of a workplace crisis. Educate them about the possible effects employees may experience. At a minimum, managers and supervisors should know to refer affected employees to an employee assistance program.
- “Cut employees some slack.” Employees may need time to get their personal lives in order, so employers may need to revisit leave policies and benefits to determine whether the nature of the crisis warrants a revision or extended leave or benefits. But make sure to apply policies uniformly.
- Help employees tend to their personal affairs. Employers may want to consider setting aside an office with a phone and internet access to allow employees to take care of private personal matters during breaks.
- Get involved in community relief efforts and allow employees to participate.
- Develop or update disaster response and recovery plans with any lessons learned.
James Reidy, an attorney with Sheehan Phinney Bass & Green PA in Manchester, New Hampshire, and an editor of New Hampshire Employment Law Letter, saw employers deal with the aftermath of Super Storm Sandy in 2012, and he says employers definitely have a role to play.
“Just like after the tragedy of September 11, Hurricane Katrina, Super Storm Sandy, tornadoes in the Midwest and South, and any other natural disaster, employers—as part of the community—need to be flexible and understand that lost homes, casualties, disruption in utilities, and transportation impact the entire community,” Reidy says. “And while getting back to business helps a community rebuild, so too does workplace flexibility and acts of compassion and kindness.”
Mark Flora, an attorney with Constangy, Brooks, Smith & Prophete LLP in Austin, Texas, and an editor of Texas Employment Law Letter, also says employers can take steps to help employees cope with disaster, but they have to keep legal obligations in mind.
“The one thing that we counsel all of our clients on is: Uniformity is paramount. … That’s easy to say and hard to do when you have this situation,” Flora says, since some employees will be in more difficult circumstances than others and it’s human nature to treat the most hard-hit more favorably. “I would caution against that even though the human heart tugs you in that direction.”
Helping employees help
Even employers in areas not suffering from disaster often get involved by allowing employees to take paid leave time to work on disaster relief or even take time and not have it counted against paid time off, Reidy says. For example, he knows of employers that gave employees time off to assist relief agencies in the days and weeks after Sandy.
Employers also may want to offer employees a way to donate money and/or time to relief efforts, but they need to consider legal implications. For example, employers need to make sure fund-raising efforts don’t violate any antisolicitation policy. “Further, employers need to account for any voluntary donations received and properly report where the money was sent,” Reidy says. “As for paid time off, the time needs to be tracked and any exceptions to time off policies should be noted and consistent.”
State laws also can come into play when employees take time to help communities recover. For example, New Hampshire has a law that grants unpaid leave time to members of a fire department, rescue squad, or emergency medical services agency when they are called into service for the state or a political subdivision during a declared state of emergency, Reidy says.
Kara Shea, an attorney with Butler Snow LLP experienced a major flood in Nashville in 2010, and she shared information for employers then in an article in Tennessee Employment Law Letter. She reminds private-sector employers that they can’t permit nonexempt employees to “volunteer” time to perform services of any kind for the employer. “So any time your nonexempt employees spent on postflood cleanup of your premises must be recorded and paid,” she wrote.
However, public and not-for-profit employers can allow employees to volunteer their services to the employer, so long as they are doing it for “civic, charitable or humanitarian reasons,” Shea wrote. That exception applies only if the work is uncoerced, performed outside regularly scheduled business hours, and different from the work regularly performed by the employee.
“For instance, an administrative assistant at a public or private not-for-profit school can volunteer to help rebuild a flooded school playground on the weekend; however, school groundskeeping or maintenance personnel must be paid at least minimum wage for that kind of work because it’s similar to their regular job duties,” Shea wrote.
Many times private employers, as well as public and not-for-profit employers, want to organize employees, including nonexempt employees, to aid disaster victims either independently or through a church or civic/service organization. In such a case, Shea wrote, the employer needs to make sure the three factors for true volunteer status are met: (1) You do not require or coerce the employee to do the work, (2) the work is performed outside the employee’s regularly scheduled work hours, and (3) the work is not the same work the employee performs for you.
Laws to consider
In addition to issues related to pay and volunteering under the Fair Labor Standards Act (FLSA), employers need to consider a host of other laws, among them, the Family and Medical Leave Act (FMLA). “I envision a lot of FMLA issues coming out of this,” Flora says, since employees will have their own serious medical conditions to deal with as well as those of family members.
Also, the general duties clause of the Occupational Safety and Health Act means employers will have to make sure they’re bringing employees back into a safe workplace, Flora says.
For more on the requirements of laws including the FLSA, FMLA, Americans with Disabilities Act, and the Uniformed Services Employment and Reemployment Rights Act, which protects employees serving in the National Guard or Reserve units, see “HR issues that arise when natural disasters hit.”