Working Through a Natural Disaster
Question: We cannot help but notice how many natural disasters have occurred recently, raising questions about how employers can continue to run their businesses during such events. First, are employers required to remain closed in areas where the government has declared a state of emergency? If there is no requirement to close during a state of emergency and an employer chooses to remain open (i.e., not to close), are employers permitted to require employees to report to work during the state of emergency. And, if they do not report to work, can employers penalize employees by not compensating them for the days they do not report to work, and/or require that employees use personal or vacation days for the days they do not report to work?
Answer: States of emergency are declared in order to speed state or local-agency assistance to affected communities by immediately making available resources for rescue, evacuation, shelter, providing essential commodities and controlling disturbances. Generally, a state of emergency does not restrict civilian movements or activities, and employers are permitted to remain open for business even while a state of emergency is in effect.
If an employer remains open during a state of emergency and work is “ready and available,” employers may require employees to work during a state of emergency. If an employee does not report to work, however, the recourse available to the employer depends on the exempt or non-exempt status of the employee. With regard to employees who are classified as non-exempt under the Fair Labor Standards Act, employers are only required to compensate them for hours worked, so they need not be paid for shifts missed as a result of a natural disaster. See 29 C.F.R. § 785.1. Non-exempt employees may charge time to accrued paid leave if they wish to get paid for these shifts.
Exempt employees, however, must be paid their entire weekly salary if they work during any portion of the work week, even if the employer remains closed for part of the week. 29 C.F.R. § 541.602(a). If permissible under state law and consistent with the employer’s policies, the employer can cover these days by taking them out of the employee’s vacation or paid-time-off banks as long as no work is performed from home. Employers may not, however, deduct these days from the employee’s paycheck, as deductions may not be made from time when work is not available. 29 C.F.R. § 541.602(a). If the employer remains shut down for an entire work week, then salaried workers need not be paid for that week. 29 C.F.R. § 541.602(a).
Under federal law, if the employer is open for business (i.e., work is available) and an exempt employee does not report for work due to a weather-related emergency, the employer may deduct a full day’s absence from the employee’s salary as long as the employee does not work from home for any part of the day. 29 C.F.R. 541.602(b). A salary deduction for less than a full day’s absence is not permitted under federal law. 29 C.F.R. 541.602(b).
Employers must also consider state and local laws in deciding the appropriate course of action. For example, in such situations, many Northeast states’ laws impose more stringent requirements on employers than the FLSA. Moreover, employment contracts and collective-bargaining agreements may also come into play and require that employees be paid in situations not covered by federal, state or local laws. Given the complexity of these issues, employers are well-served in familiarizing themselves with any relevant state and local laws as well as any contractual provisions governing their employees’ leave in these situations.
Proskauer Associate Noa Baddish assisted the author with this article.
Keisha-Ann G. Gray is senior counsel in the Labor & Employment Law Department of Proskauer in New York and co-chair of the Department's Employment Litigation and Arbitration Practice Group.