Employer’s Disaster Checklist: Just in Case

Natural Disasters Affect Employers, Too

by  Kevin Hyde 

at  Foley & Lardner LLP

Natural disasters such as wildfires in Maui, Hurricane Idalia, flooding in California, and excessive heat almost everywhere have taken a real human toll over the past few months. As the end of summer approaches, many Americans will look back on it as a season of practically unparalleled natural disaster. And, at least for Atlantic hurricanes, there are still a couple of months to go — the season doesn’t end until November 30, 2023.  

People experiencing natural disasters must rebuild lives and property. A natural disaster is no time for employers to think they are relieved of employment law obligations.  

Here is a basic (albeit not exhaustive) checklist of items to immediately consider when employees face a natural disaster or its aftermath: 

1. Payroll obligations do not stop. Remember — exempt employees who perform any work in a single workweek must be paid their salary for the week. This includes time when the employee might be unable to report to the office/worksite or it is otherwise closed. Non-exempt employees do not have to be paid if no work is performed, though there is an exception for hourly employees paid on a fluctuating workweek basis who perform some work in the week. 
2. Exempt employees who are unable to work due to the natural disaster can be required to take available leave. Nonexempt employees can also use available leave to replace income not earned because of the inability to work. 
3. Consider whether there are WARN Act requirements if the employer shuts down or has to lay off employees permanently or for an extended period of time. Remember that the specific requirements of the WARN Act must be satisfied, regardless of why the employer is terminating or laying off the employees. (Note that, under the WARN Act’s “unforeseeable business circumstances” exception, depending on the specifics of the natural disaster, the standard 60-day notice period may potentially be shortened.) Also, be sure to check for state law “mini WARN Act” requirements that may apply, depending on location. 
4. Establish communication systems beforehand and assess their effectiveness. Do you have an automated message system to reach all employees? How can employees effectively notify you of a particular hardship they may have encountered, especially if unable to report to work for a period of time? Communication is key, not only from a compliance standpoint but in supporting the workforce in a difficult time and notifying staff of key expectations and deadlines. Be sure to consider how you will communicate in the face of power outages or when phones are down. 
5. Make sure employee records (payroll, personnel files) are protected during the disaster and accessible after the disaster.   
6. Understand that the possibility of injury is heightened if employees assist in disaster recovery. Remember and comply with OSHA obligations to record and report injuries. 
7. Be aware of state unemployment compensation requirements that may affect the eligibility of employees to receive benefits. While an employer cannot promise a displaced employee will or will not be eligible for benefits, an employer can be a resource for helping employees decide whether and how to apply. 
8. If covered by a collective bargaining agreement (CBA), consider whether any post-disaster action implicates terms or conditions covered by the CBA. 
9. In the case of extended absence or closure, consider whether employees remain covered by applicable group health plans as well as determine whether COBRA notices must be provided. 
10. In the case of damage to your employment facility, remember that OSHA generally requires that a workplace be safe for its workforce. Accordingly, specialist vendors may need to conduct testing, such as air quality testing, structural integrity, etc. 
11. Be flexible with medical documentation regarding requests for and returning from leaves of absence. Medical provider availability will likely be impacted. 
12. Look at past practices in deciding how to make employment decisions but remember that a natural disaster presents employees with unique situations and challenges. An employee unable to report to work because of a natural disaster is different than an employee who simply chooses not to report to work in good weather.  
13. Situations caused by natural disasters give new meaning to the cliché that “discretion is the better part of valor.”

Optimistically, the spate of natural disasters we’ve seen these past several months is behind us.  Realistically, that is unlikely to be the case. Winter is right around the corner, and with it, new challenges will emerge.  

Regardless of what happens and why, employers must be prepared to deal with a natural disaster, its aftermath, and its effect on an employer’s most valuable resource — its people.