*Editor’s note: The content of this article was originally intended for Texas employers dealing with the repercussions of Hurricane Harvey. However, with the recent California wildfires and other natural disasters impacting various parts of the country, employers from all states can take glean insight from Maslanka’s advice.
I was in my office, watching a streaming press conference from the Houston convention center. The manager of the center went to the podium and spoke for a minute. This is essentially what he said: “We are opening the center for those citizens in need. We will feed them as a first priority and then provide shelter. We will be here for as long as needed. Extreme times call for extreme measures.” He then sat down. And I thought, that’s exactly right.
We do this in the workplace all the time: What is a proportionate response to the issue at hand (whether it’s an employee rule violation or handling an employee who is fired and grumbles vaguely about doing something)? It’s a portable principle, and Houston-area employers can illuminate their way forward with its use.
What will employees need first? One word: money. And the IRS for once is your best friend with IRC Section 139, which provides for Qualified Disaster payments. What are they? You cut a check to an employee to reimburse her for reasonable and necessary personal or family living expenses she had to shell out money for because of a qualified disaster. The sweetener: the IRS says the payment can be made without any income or payroll tax consequences. Set up a system to do so, and let your employees know.
But wait, there’s more. If you can’t put employees back to work because of Hurricane Harvey, they can file for unemployment compensation benefits. If an employee isn’t eligible for standard unemployment benefits, then the feds will help with the payment of Disaster Unemployment Assistance. But in either case, the employee must first file with the Texas Workforce Commission (TWC).
Third, if you are able, prepay employees (yes, advance them money). Make sure to document the prepayment and whether you intend to recoup the money through future paycheck deductions (unlike the IRS gift, you must still report these amounts as wages and make proper deductions/contributions).
Now is not the time to give cramped reading to laws dealing with employees. Look at the Texas law that forbids retaliation against an employee who evacuates in accordance with a government order. And if the government order recommends that you voluntarily evacuate, read the law broadly to cover that circumstance. Another scenario is if an employee is at home, has not yet come to work, and hears the mandatory or suggested order to evacuate and leaves from home instead of going to work first.
Be generous with leave. Even if an employee has not yet qualified for Family and Medical Leave Act (FMLA) leave, extend those types of benefits to him. Or if the employee claims PTSD, consider reasonable accommodations. Think about amending your handbook to provide for these types of benefits or others for a certain period of time. Like the convention center manager said, extreme times call for extreme measures.
I am reminded of Viktor Frankel and his classic book Man’s Search for Meaning. His timeless lesson: We are not in control of what happens to us. Zero control. But we are 100 percent in control of our response to it. And what I see are Texans going to bat for other Texans and embodying, in the very best sense, Frankel’s timeless advice.
Michael P. Maslanka is an editor of Texas Employment Law Letter and can be reached at Michael.Maslanka@FisherBroyles.com.