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Addressing Employment Concerns in a Disaster

Even businesses that have well-developed emergency policies will face many questions related to employee leave and safety during and after a natural disaster. The recent catastrophic storm in Louisiana and East Texas has resulted not only in damage to business properties, but also to the homes and neighborhoods of employees. This will require employers to consider and to address carefully various leave laws and other concerns. We have prepared a basic guide for employers whose businesses and employees are affected.

Employee Leave Laws

Family and Medical Leave Act: The FMLA provides leave for a qualifying employee due to his or her own serious health condition or a medical condition of their spouse or dependent children, including injuries or illnesses. Employers with 50 or more employees within a 75-mile radius are subject to the FMLA. An employee who qualifies for FMLA leave can take up to 12 weeks of unpaid leave and is entitled to return to the same or equivalent position if able to return before the lapse of 12 weeks. Although FMLA leave is unpaid (except for situations falling under the Families First Coronavirus Response Act related to COVID-19), employees may use vacation or sick leave in conjunction with their FMLA leave. Employers are not required to tack on FMLA to vacation or sick leave which the employee may have accrued.

Americans with Disabilities Act: Injured or ill employees may qualify for ADA leave even if they or their employer do not satisfy the criteria for leave under the FMLA. Employers with 15 or more employees are subject to the ADA. The amount of leave an employee may take is not fixed, as it is with the FMLA. An employee who takes ADA leave is entitled to return to the same position, unlike the FMLA which specifies returning to the “same” or “equivalent” position.

Military leave: Employees called up for National Guard or other military duty to assist with search-and-rescue and recovery efforts must be granted leave and are job-protected under USERRA (Uniformed Services Employment and Reemployment Act). An employee on military leave is entitled to return to his or her former position.

First responders: Similar to the military, volunteer first responders called to duty as a result of the governor’s emergency proclamation must be granted leave.

Other Workplace Issues

Plant closure laws: If a business is forced to close, depending on the size of the company and the number of employees affected, there may be a notice obligation under the WARN Act (Worker Adjustment and Retraining Notification Act) to the affected employees and to the Louisiana Workforce Commission (or the Texas Workforce Commission) and to local government leadership. Normally, 60 days’ advance notice of a closure must be given, but there is an exception for unexpected events. Unionized employers are obligated to notify and, if requested, bargain with the union over the effects of a closure.

Unemployment compensation: Employees out of work as a result of a natural disaster are entitled to benefits.

OSHA: Employer job safety obligations continue during the recovery period. This means that employees engaged in clean-up and debris removal efforts must be provided appropriate personal protective equipment such as boots, hard hats, gloves, respirators, and any items needed for working outdoors in extreme heat (water, shade, etc.).

401(k) hardship loans: Employers with 401(k) plans should anticipate employee requests for hardship loans if their plans permit them.

Fair Labor Standards Act: FLSA minimum wage and overtime laws are not suspended during a disaster recovery period. Workers assisting with cleanup efforts at a jobsite, for instance, must be paid the minimum wage and time-and-a-half for hours over 40 in a week.