[This article was originally published on November 22, 2017. In light of the recent wildfires in Sonoma County and other regions throughout California, this post has been updated and revised.]
Once again, residents and business owners in California have been dealt a devastating blow by raging wildfires that have destroyed 450 structures and damaged another 190 just in 2019 alone.
Most significantly, Sonoma County has suffered through another disastrous wildfire, the Kincade Fire, that not only burned over 77,000 acres, but destroyed 174 homes and at least 11 commercial buildings. This fire occurred two years almost to the day that the devastating and deadly Tubbs Fire raged through the city of Santa Rosa and other outlying areas in October of 2017.
In addition to the actual fire and smoke damage that was incurred this time, during the early weeks of the Kincade Fire, PG&E initiated a massive power shut-off to nearly 940,000 customers, including tens of thousand of businesses.
As a result, thousands of business owners and their employees were impacted.
Fortunately for the vast majority of businesses in America, relatively few ever suffer from severe weather disasters or other life and property threatening natural events. But whether it happens because of mother nature, or because of broken water main, no business owner is exempt from the possibility of a disaster impacting their company, and every employer has obligations during such events.
There are several issues that must be considered when an event occurs that requires an employer to close their businesses and for resuming normal operations. Employees, for example will want to know how and if they will be paid. This means that employers must understand if a forced business closure requires paying employees who cannot come to work.
In addition, there are questions concerning obligations for unemployment compensation and, if employees are injured as a result of disaster-related events, whether they will be eligible for workers' compensation.
Exempt and Nonexempt Employees
Probably the first and foremost issue facing employers during any length of business closure is employee compensation. And this is determined by the worker's status as either a nonexempt or exempt employee.
According to the Fair Labor Standards Act (FLSA) employers are required to pay their nonexempt workers only for the hours they have actually worked. This means that an employer is not legally required to pay those employees if no work can be provided to those employees because of a natural disaster.
Employees who receive fixed salaries for fluctuating workweeks provide an exception to this general rule. In other words, employers must pay these employees their full weekly fixed salary for any week in which any work was performed.
Exempt employees, on the other hand, employers are required to pay those employees their full salary if the business is closed due to severe weather or other disasters for less than a full workweek. An employer can, however, require those exempt employees to use any allowed leave for this non-working time.
According to the U.S. Department of Labor (DOL) if an employee chooses to not come to work because of the weather, or experiences transportation difficulties due to a weather emergency, this is considered a work absence if the place of business is open. Consequently, the employer can place the exempt employee on leave without pay for the full day of week missed. As an alternative, the employer can require the employee to use any available vacation time.
Because of the extenuating circumstances in these situations, many employers might be hesitant to withhold an exempt worker's pay. As a result, many employers will require employees to "make up" lost time after they return to work instead. This is permissible for exempt employees, however, this option is not allowed for nonexempt employees, since they must be paid overtime for all hours worked over 40 in a work week.
Under the FLSA, an employee who is required to remain on-call at the employer's premises or close by while the office is closed due to a weather emergency must be paid for that time. Employers are not, however, required to pay employees who are at home and "standing by" but able to use the time for their own purposes. In addition, some states impose different or more stringent requirements for on-call time.
Another consideration is time spent by workers at an office or workplace waiting to begin work. Waiting time must be paid when, for example, workers are at work but must wait for the power to restart. This is still considered time worked.
Employees with a serious health condition caused by a natural disaster are entitled to leave time under the Family and Medical Leave Act (FMLA). This may also include employees impacted by a natural disaster who must care for a child, spouse, or parent with a serious health condition.
Employee safety is a natural concern for employers and there are obligations placed on employers. The SHRM website notes the following:
When it comes to natural disasters, consider the following under OSHA:
• Employers are responsible to protect employees from unreasonable danger in the workplace, which includes an imminent "natural phenomenon" that will threaten employee safety and health.
• Hurricanes and other disasters present obvious safety concerns that employers need to consider when asking employees to come into work during adverse weather, including vehicle accidents, slips and falls, flying objects, electrical hazards from downed power lines, exhaustion from working extended shifts and dehydration.
• An employee that reasonably believes he/she has been put in imminent danger because of being forced to go to work during a hurricane may file a complaint with OSHA against the employer and then ask for whistleblower protection.
https://www.osha.gov/SLTC/emergencypreparedness/
Emergencies resulting from natural or man-made disasters can create a variety of hazards for employees in the impacted area. By preparing before an emergency incident, employers can help to ensure that their employees and workers have the necessary equipment, know where to go, and know how to keep themselves safe when an emergency occurs.
Because emergencies and disasters can occur at any time of year, weather can often be a safety factor, as well. This is why OSHA has developed guidelines that are available for employers addressing work in winter weather conditions. These guidelines are designed to help employers protect their employees and offer recommendations for safe work practices, appropriate clothing, and avoiding cold-related injuries.
Accurate and timely management and HR compliance practices are required for HR professionals in every business. Managing all of this can be challenging, but you do have options.
Accuchex is a reputable workforce management services provider and can not only assist you with the burden of your ongoing compliance demands but can potentially prove to be a more cost-effective solution, as well.
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