As employers assess the damage to their businesses post-Ida, many are anticipating a financial slowdown as a result of the interruption to their business operations. With the financial stress caused by the pandemic fresh on everyone’s minds, many employers are proactively exploring ways to financially weather the storm. To that end, many are wondering: “Do I have to pay my employees who couldn’t work because of the hurricane?” The Answer: It Depends.
For those employees that are hourly/non-exempt and eligible for overtime, employers are only obligated to pay those employees for hours actually worked. To the extent the employee performed no work, employers are under no obligation to pay. A word of caution: If you required the employee to perform some work while he or she was evacuated, you must compensate those employees for the actual time he/she worked. There could also be nuances employers must be mindful of to the extent they asked certain employees to be “on call” before, during, or after the storm.
For those hours that the non-exempt employee is unable to work, an employer may require the employee (or the employee may elect) to use any accrued or available paid leave to help bridge the gap.
As far as salaried exempt employees go, the general rule is that if an exempt employee performs any work at all during a given workweek, he/she is entitled to be paid their full salary for that workweek (except for the first or last week of employment, which can legally be prorated). Thus, if Hurricane Ida caused your business to close for less than a full workweek, you are legally required to pay your exempt employees for that entire workweek, assuming they performed any work during that workweek.
If, however, Hurricane Ida caused your business to be closed for an entire workweek, and the exempt employee performed no work whatsoever during that workweek, employers are not legally required to pay the employee for that workweek.
Once your business reopens, if the exempt employee elects not to report to work, the absence is considered to be for “personal reasons.” In that instance, employers are not legally required to pay the employee for any full workdays that the exempt employee performed no work.
In lieu of not paying the salaried exempt employee, the employer may require the employee (or the employee may elect) to use any available paid leave, e.g. PTO. If the employer has a written policy for providing paid leave for personal reasons, and the employee has exhausted his/her available leave, then any full-day absences where the employee is performing no work for personal reasons may legally be unpaid.
Of course, there are exceptions to these general rules, including potentially under state law depending on your jurisdiction. Thus, it is always best practice to consult with experienced employment counsel to help you navigate your particular situation.