By Holly Jones, JD, Senior Legal Editor
When I was in law school, one of my professors (my ethics professor, no less) advised us that the most reliable way to avoid the inevitable onslaught of distant relations, fair-weather friends, and just-met acquaintances asking for free legal advice was to quickly state, “Oh, I practice criminal law.” After all, she reasoned, who would casually air that sort of dirty laundry over dinner? (Well, let’s just say she doesn’t know my distant relatives.)
Surprisingly, I have found her adage to ring true for employment law. I think we tend to be reluctant to admit that our professional lives are anything other than Instagram-perfect, so it’s a rare occurrence for even close friends and family to come to me with questions about their employment and compensation rights.
With that said, the single most consistent exception to this rule arises when there is a serious weather event (or, in the case of my fellow Tennesseans, snow in the forecast). This is when I find myself comforting frustrated and frightened friends and family with the surprising news that, yes, their employers can still expect them to report to work during a hurricane, flood, or blizzard.
State of Emergency
The declaration of a “state of emergency” is often a source of confusion for workers. Public employers, whether in the form of specific regulation or simply internal policy, generally have their own rules for staffing during natural disasters and declared states of emergency.
For example, South Carolina law allows the governor to provide state employees with up to 5 days of paid leave during a declared state of emergency. If such leave is not provided by the governor, then the state’s Office of Human Resources offers detailed alternative guidance to ensure employee safety.
Yet, private employees may not understand that these rules do not apply to them. So when a state of emergency is declared, they may (trust me, they do) feel that this means it is specifically unsafe and even illegal for them to be asked to report to work.
Rather, in the absence of a specific order or directive (e.g., mandatory evacuation), declaration of a state of emergency does not, by itself, require or restrict private citizens or businesses from operating. The declaration generally has more to do with mobilization of rescue personnel (such as National Guard) and access to state and federal relief funds and resources.
Paid Time Off and Compensation
Thus, even during a declared state of emergency, many businesses may—even must—continue to operate for as long as possible. This means their employees must still make an effort to report to work. Of course, some will genuinely be unable to do so, at which point employers must determine how to address missed shifts.
Whether employees are entitled to compensation for time not worked during a natural disaster will depend on whether the workers are exempt or non-exempt under the Fair Labor Standards Act (FLSA) and whether the business remains open during the emergency. (More information on FLSA requirements during an emergency is available in this article.)
Regardless of an employee’s exemption status, employers may require the use of earned paid-time-off or similar leave to cover work shifts missed during an emergency. Employers may also continue to apply standard attendance, call-in, and, yes, even disciplinary policies.
What About FMLA?
Though the first reaction is to say “Well, of course the Family and Medical Leave Act (FMLA) doesn’t apply, it’s for medical leave,” there are a couple of caveats to note.
First, if you have an employee who is already out on leave under FMLA, work hours missed during an emergency can generally be counted toward the employee’s FMLA allotment unless your business closes for more than a week or the employee is taking intermittent leave in blocks smaller than the full work week.
Second, don’t overlook the possibility of the emergency itself creating or triggering a serious health condition (for the employee or his or her family members) that would be FMLA-eligible. For example, an employee may need to provide medical care to a covered family member who, but for the emergency, would otherwise be able to provide or seek care for him or herself. These circumstances may qualify for FMLA protection (in addition to any concurrent use of PTO).
Note that many states do provide protected leave to employees with emergency responder duties. For a concise summary of these laws for all 50 states, see our State Law Chart Builder.
Similarly, note that military personnel, including National Guard members, who are required to report to duty to assist with natural disaster recovery are protected by the federal Uniformed Services Employment and Reemployment Rights Act (USERRA). More information on USERRA rights is available on the HR.BLR.com topical analysis page.
Finally, both the Occupational Safety and Health Act (OSH Act) and National Labor Relations Act (NLRA) may come into play if employees reasonably and in good faith feel that workplace conditions would be unsafe during the emergency.
Of course, simply because we can do something doesn’t always mean that we should. Requiring nonessential employees to either report to work or take vacation time, pay deductions, or discipline during a time when they are (reasonably) concerned about personal safety is a serious morale killer. As I noted, this is the one time that I have more people come to me with complaints and incredulous cries that “They can’t do that, can they?”
So what’s an employer to do?
If closing business operation during the emergency is truly not an option, or if the emergency affects only some of your workforce, one workable policy alternative takes a page from the state governments: Go ahead and offer employees a reasonable and workable number of “emergency response” days of leave per year.
Eligibility to use these days could be activated automatically based on a reliable trigger—for example, the declaration of a state of emergency or closure of a nearby school or other public facility—or upon the employee’s reasonable discretion. Since these days would be administratively separate from the emotionally-invested paid time off bank, employees need not feel that they are sacrificing vacation days in order to stay safe during weather emergencies.
At the same time, employers may address concerns of the financial burden of offering staff even more days and types of paid leave by bundling these “emergency response” days with an existing bereavement or funeral leave entitlement. A general “emergency leave” policy assures employees that their safety during a natural disaster or severe weather event will be treated with the same care and deference as that of an employee needing to mourn the loss of a loved one, while also sending the message that these days are truly for emergencies rather than free “snow days.”
- Workplace emergencies resource center
- State Comparison Chart – Small Necessities Leave
- Topical Analysis – Emergency Closings
|Holly K. Jones, JD is a Senior Legal Editor for BLR’s human resources and employment law publications. She understands the existing and emerging needs and challenges of human resources professionals thanks to several years of experience managing, writing, and editing key legal and compliance publications for BLR. Prior to joining BLR, Ms. Jones worked for the Tennessee Legislature’s Office of Legal Services.
She graduated magna cum laude and Phi Beta Kappa with a BA in English Rhetoric and Writing, Political Science, and Psychology from the University of Tennessee in Knoxville, Tennessee, where she also received a 2001 Citation for Extraordinary Academic Achievement. She received her law degree from Vanderbilt University Law School and is licensed to practice law in Tennessee.
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