Thousands of Florida coastal residents were ordered to evacuate last week in anticipation of Hurricane Irma, even as their employers remained open. A pizza restaurant manager made headlines when he threatened action against employees who chose to miss shifts to evacuate. Other employers instructed employees not to report and planned to close their offices part of this week. What are the employer’s obligations to employees for the days employers chose not to open? Can the employer terminate employees who fail to report back to work, even if it’s because they cannot get there for reasons such as flooding? And what can employers do if they no longer have work for employees or if they want to help employees who still can’t report back to work?
For starters, remember that employers must pay exempt workers their salary for any week in which they perform any work. (Exempt workers are those who are paid on a salary basis and meet one of the duties tests to be exempt from overtime and record keeping under the Fair Labor Standards Act.) Deductions from salary are permitted only in a few narrow circumstances. If the exempt employee is ready, willing and able to work, and the employer chooses to close its offices for a few days, the exempt employee must still receive his/her full salary for any week in which he performs any work. Exempt employees can be required to use paid time off, but must be paid their salary. However, if the business is re-opened and the exempt employee chooses to take a full personal day off (as opposed to the employer not being open for business), an employer could make a full day deduction from compensation.
Non-exempt employees – generally, those paid on an hourly basis – do not have the same protections. Absent a policy or agreement to the contrary, employers can pay them only for the hours worked. And Florida is an at-will employment state, meaning absent a contract or collective bargaining agreement, an employee can be terminated for a good reason, bad reason or no reason – as long as it’s not an unlawful reason. Further, many employers have disaster plans or policies in place, clarifying employees’ and employers’ obligations. So while in general, Florida employees who failed to report to work before Irma or who failed to return to work after could be terminated, wise employers will give careful consideration to the importance of supporting their workers in times of crisis.
Employers must also remember that they are responsible for providing a safe workplace for workers. If your premises were damaged during the storm, make sure they are safe before bringing workers back. And if you’re thinking your employees will help restore the premises to good working order, remember that employers are required to protect workers from the anticipated hazards associated with the response and recovery operations that workers are likely to conduct. More information is available from OSHA here.
Employers should also be cognizant of their obligations under the Family and Medical Leave Act and federal and state disability laws for employees who suffered serious health conditions or became disabled as a result of the storm.
What about those workers who lost their small business or whose workplace was so damaged that work is not yet available? What about workers who cannot reach their employment as a result of flooding, or those who cannot work due to injury caused by the disaster? What about those who were offered a job at a business where the job is no longer available? Those workers and others who are out of work as a result of a disaster like Irma or Harvey may qualify for federal disaster unemployment benefits without necessarily affecting the employer’s unemployment compensation rating.
Specifically, the federally funded, state administered Disaster Unemployment Assistance (DUA) is available to eligible persons who are out of work as a “direct result” of a major disaster. To be eligible, the individual must have worked or lived in a county for which disaster has been declared and must not qualify for regular unemployment insurance from any state or U.S. territory. Once eligible for DUA, workers must actively look for work and accept suitable work offered them and must show that for every week they are collecting DUA, their unemployment continues to be the direct result of the disaster, not other factors.
Note that in Florida, an individual must exhaust all entitlement (called Reemployment Assistance, Emergency Unemployment Compensation) prior to being eligible for DUA. A claimant who is disqualified from receiving regular reemployment benefits may still be entitled to Disaster Unemployment Assistance.
To qualify for federal DUA, workers must apply within 30 days of the announcement of the availability of disaster unemployment assistance. The Florida Department of Economic Opportunity announced the availability of disaster benefits on September 13.
Individuals who wish to file a claim for DUA benefits may do so via DEO’s CONNECT system. The DEO advises that the claimant should submit a claim for DUA and, after the claim has been submitted, DEO will first review the claim to determine if the claimant is eligible for regular reemployment assistance benefits. If the claimant is ineligible for a regular claim, the Department will then review the claim to determine eligibility for DUA benefits. If a claimant is determined eligible for a regular claim based on a DUA-related event and subsequently exhausts the benefits available under the regular claim, the Department will then provide notification to the claimant that additional weeks of benefits may be available as DUA benefits. (A maximum number of weeks available for a regular claim is 12 weeks, but DUA benefits are available for up to 27 weeks as a result of Hurricane Irma.)
More information on disaster unemployment assistance in Florida, is available here.
Florida has other resources to help businesses with planning and recovery, including the Florida Virtual Business Emergency Operations Center website. The site offers the opportunity to receive alerts, participate in calls with private sector businesses and share information with business partner organizations like the Small Business Development Centers, the Florida Chamber of Commerce, Florida Restaurant & Lodging Association, Visit Florida and others.
Other federal resources may be available for business owners, such as loans up to $2 million for business property losses not fully compensated by insurance; loans up to $2 million for small businesses, small agricultural cooperatives and most private, non-profit organizations of all sizes that have suffered disaster-related cash flow problems and need funds for working capital to recover from the disaster’s adverse economic impact; and loans up to $500,000 for farmers, ranchers and aquaculture operators to cover production and property losses, excluding primary residence. More information on those resources, is available here.
The above are merely some of the issues that arise for employers in the aftermath of a natural disaster like the recent hurricanes in Texas and Florida. For assistance with your workplace questions, please contact your Akerman Labor & Employment attorney.