Aaron Tandy Authors Column in DBR About Hurricane Preparedness in the Workplace

The hurricane season began just days ago and preparedness in the workplace is essential.

Several federal agencies, including the Federal Emergency Management Agency (FEMA), the Department of Labor (DOL) and Occupational Safety and Health Administration (OSHA) have created materials to help employers and their employees prepare for the potential impact of a hurricane. FEMA’s “Prepare Your Organization for a Hurricane Playbook” is available at www.fema.gov, along with a checklist for developing an emergency action plan.

Four Critical Steps

There are four critical steps for business organizations to undertake to prepare for a hurricane: create an emergency action plan for securing the business, its records and the safety of its employees during the threat of a hurricane; create policies for addressing compliance with wage and hour and other labor laws if a business is interrupted or impacted by a hurricane; create policies for addressing leave and accommodation requests necessitated by a hurricane; and identify critical pathways to continuing or re-starting a business once a hurricane has passed.

An Emergency Action Plan

An emergency action plan should identify: a crisis management team; emergency communications and contact procedures; procedures for securing the physical business location, including employee work stations; procedures for securing business records, including insurance policies and employment records; technology back-up programs; and training for employees and management who are assigned particular roles in responding to an imminent hurricane. Employers with large numbers of employees may wish to hold practice drills or activate an emergency contact list as part of planning.

Although Florida does not have specific laws addressing when employees may decline work assignments because of the threat of a looming storm, prudent employers will have developed closure procedures for inclement, serious weather conditions. Such policies are important to allow employees to safely leave and secure their own personal dwellings or assist other family members and are critical to creating the positive work environment that encourages employees to return to the office after the storm has passed.

Complying With Labor Laws

Unlike some states that have rules regarding pay for inclement weather closure, or require or encourage inclement weather days be paid time off, Florida provides little or no guidance to employers regarding compensating employees for lost time. Instead, employers must look to the Fair Labor Standards Act (FLSA) and Department of Labor regulations, which provide for different treatment of hourly, nonexempt employees and salaried employees. Further, an employer’s own policy manual or a collective bargaining agreement may need to be consulted to arrive at an answer.

Consulting an employment attorney is a positive step to keep employers from avoiding, even inadvertently, FLSA violations or unexpected pay obligations, including overtime, which may further impact businesses already dealing with the economic effects of a hurricane’s visit.

Complying With Leave Laws

Employers need to remember that the threat of or actual arrival of a hurricane may trigger leave requirements for their employees under a variety of circumstances. For example, an employee who is an active member of the National Guard or other military reserve who is called up will be entitled to leave under the Uniformed Services Employment and Reemployment Rights Act (USERRA) which prohibits an employer from interfering with an employee’s obligation to perform services as a member of such organization. Similarly, the Family Medical Leave Act (FMLA) as amended by the National

Defense Authorization Act, provides leave to the spouse, child or parent of a called-up service member, and is active once that service member is notified of an impending call-up order. In other words, if an employee or an employee’s service member is notified that return to service is imminent, they are entitled to leave even if the hurricane ultimately does not land.

FMLA leave is also required for those qualifying businesses and employees who are physically impacted by a hurricane, either from suffering a direct injury caused by the storm or an exacerbation of a health condition created by the storm’s arrival. An employee injured during a hurricane may also qualify for a temporary accommodation under the Americans with Disabilities Act (ADA), and employers need to be prepared to address leave and accommodation requests for their workforce.

Maintaining a Business After a Hurricane

Preparing for a hurricane also means preparing to continue operations after the hurricane has passed. Businesses should make sure that they have identified essential resources needed to restore operations including access to monetary funds, supplies, technology and personnel. Employers should develop a plan for making such critical components accessible once conditions are feasible. Employers should review their insurance policies to determine what types of coverage are available and also familiarize themselves with government aid that may be available as part of disaster relief programs. Businesses should also identify potential temporary workspace to the extent that current locations may be damaged by a storm. OSHA requires that employers provide safe working conditions for their employees that may be more difficult if regular office, factory or working space cannot be accessed safely or the space itself is without electricity for example. While restoring business operations is a priority, employers must make sure to proceed cautiously to avoid post-hurricane complaints from forcing employees back to work sooner than safety requires.

Aaron Tandy heads the Pathman Schermer Tandy’s employment law practice, helping employers and employees navigate complex employment issues. Tandy can be reached at atandy@pst.law.