(NOTE: The following is information complied by LABI experts, but does not constitute formal legal advice. For more detailed guidance, please contact a labor attorney)
Unemployment Compensation (UC)
In Louisiana, when an employee is unemployed due to a natural disaster and files a claim for UC benefits, his or her employer's experience-rated tax account is usually subject to being charged for the those benefits. However, after Hurricane Katrina struck, then-Governor Kathleen Blanco issued executive orders exempting individual employer accounts from the benefit charges attributable to that storm, and the same action may be taken by Governor John Bel Edwards in this case, or by the Legislature during a special session anticipated this fall. Any employees who fail to report for work without good cause after their employers direct them to return to their jobs should be disqualified from receiving benefits, provided the Louisiana Workforce Commission is notified of their refusal.
Most unemployed workers are covered through the state's regular UC system, but those who are not can apply for Disaster Unemployment Assistance (DUA). DUA is a federally-funded program that assists individuals who become unemployed as a direct result of a declared disaster. The program covers self-employed individuals and others who are not normally covered under the state UC program.
Family and Medical Leave Act (FMLA)
Under the federal FMLA, employees impacted by a natural disaster are entitled to leave for a serious health condition caused by the disaster. Additionally, employees affected by a natural disaster who must care for a child, spouse, or parent with a serious health condition may also be entitled to leave.
Uniformed Services Employment and Reemployment Rights Act (USERRA)
Employees who are part of the National Guard or a Reserve unit may fall under the USERRA. USERRA prohibits discharging, denying initial employment, denying promotion or denying any benefit of employment because of a person's membership, performance of service or obligation to perform service in uniformed service. While USERRA does require advance notice of military service, there is no timeframe within which notice must be given. Notice needs only to be "timely." In the event of a hurricane, there will be relatively short notice. The notice may be delivered in writing or orally, and it may be provided by the employee or an appropriate officer of the military branch in which the employee serves.
Americans with Disabilities Act (ADA)
Under the federal ADA, employees who are physically or emotionally injured as the result of a natural disaster occurrence may be entitled to reasonable accommodation by the employer as long as it would not place undue hardship on the operation of that employer's business.
Occupational Safety and Health Act (OSHA)
Where Hurricane Laura is concerned, employers should consider the following under the federal OSHA:
Employees must be protected from unreasonable dangers in the workplace that threaten safety and health.
Hurricanes pose obvious safety considerations of which employers should be mindful when their employees return to work after the storm, including exposure to toxins, slips and falls, electrical hazards and exhaustion as a result of working extended hours.
OSHA fact sheets exist that lay out the issues and hazards related to recovery and cleanup efforts after hurricanes.
National Labor Relations Act (NLRA)
The NLRA generally governs relations between employers and labor unions. The NLRA constrains an employer and the union representing its employees to meet periodically in order to confer in good faith with respect to hours, wages and/or any other terms or conditions of employment, and for the purpose of negotiating an agreement or addressing any issue arising under such agreement. Following a natural disaster, an employer may have to make certain changes in the workplace if employees reasonably believe the workplace to be unsafe.
Some collective bargaining agreements contain a "force majeure" clause, outlining the employer's rights and duties in emergency situations caused by unforeseeable forces of nature. In some cases, a disaster can force an employer out of business. Generally, an employer has the right to cease operations and close business completely without first bargaining with the union over its decision, but must bargain over the "effects" of the decision to do so.
The OSHA and the NLRA both give employees the right to refuse to work in conditions they believe are unsafe. While employees must reasonably and in good faith believe that working would be unsafe, the law protects them even if they are mistaken about the danger. The two laws have slightly different standards. For both union and nonunion employees, refusing to work because of safety concerns can be considered a “concerted activity” that is protected by the NLRA. Concerted activity usually involves more than one employee; i.e., in concert with others. However, it has also been interpreted to consist of one employee if he or she is acting on a matter that affects other workers.
Fair Labor Standards Act (FLSA)
The federal FLSA governs employer/employee relations respecting wages and hours of work. Under the FLSA, there are “nonexempt employees,” who are generally compensated on an hourly basis, and there are “exempt employees” who are salaried.
Employers are obligated to pay “nonexempt employees” only for the hours they actually work. So, an employer is not required to pay nonexempt employees if that employer is unable to provide work for them because of a natural disaster. An exception exists to this rule for nonexempt employees receiving fixed salaries for fluctuating workweeks. Such employees agree to work an unspecified number of hours for a specified salary. These employees must be paid their full weekly salary for any week in which work is performed.
Employers must pay their exempt employees full salary if the business is closed or unable to reopen due to a natural disaster for less than a full workweek. However, an employer may require exempt employees to use allowed leave for this time. If an employer is open for business, an employee’s failure to report for work due to transportation difficulties experienced during a weather emergency is considered by the U.S. Department of Labor (USDOL) to be an absence for personal reasons. So, an employer has the option of placing an exempt employee on leave without pay (or requiring the employee to use accrued vacation time) for the day or days he or she fails to report to work.
When an employee is absent for one or more full days for personal reasons, the employee's salaried status will not be affected if deductions are made from his or her salary for such absences. However, a deduction from salary for less than a full-day's absence is not permitted. Many employers require employees to "make up" lost time after they return to work, which is permissible for exempt employees. This practice is not allowed for nonexempt employees, who must be paid overtime for all hours worked over 40 in a work week.
Employees who must be “on call” at the employer's premises, or remain close by, may be working, and the employer may have to pay such employee for all of that time. Maintenance workers who remain on their employer’s premises during a storm in the event of a need for emergency repairs must be compensated if they are not free to leave at any time, even if they perform no work within the timeframe. If an employee is required to be at work and wait for the power to come back on, that is considered time worked and compensable – even if he or she does nothing the entire time.
Worker Adjustment and Retraining Notification Act (WARN)
The federal WARN Act requires employers with 100 or more employees to provide notice 60 days ahead of certain closings and/or mass layoffs. An exception exists when the closing or layoff is a direct result of a natural disaster. Nevertheless, employers are required to give as much notice as possible. If an employer gives less than 60 days advance notice, it may become necessary to prove that the conditions for the exception were met. If such a closing or layoff is anticipated, legal counsel should be consulted to ensure compliance with the WARN Act.
Employee Retirement Income Security Act (ERISA) and Consolidated Omnibus Budget Reconciliation Act (COBRA)
Facility closure and employee displacement resulting from a natural disaster creates issues involving the continuance or discontinuance of benefits. During such times when employees and/or the business may not be working or operating, even if temporarily, employers must make coverage decisions about whether benefits will be maintained for their employees. Where an employer decides to continue coverage, the benefits vendor should be contacted to determine how and to what extent coverage is to be maintained during the period of the disaster.
Often, it is the ERISA-covered benefits of life, health and disability insurance about which employees and their dependents are most concerned and wish to maintain. For a COBRA-covered health plan, the plan administrator must be notified if an employee is no longer eligible for coverage under an ongoing plan because the employee is not working. Upon notification, the employer must send COBRA packages to employees and their covered dependents. The general rule for all notices is that they need only be sent to an employee's last known address. According to the USDOL, COBRA notices are timely when sent up to 45 days from the COBRA "qualifying event." Generally, the decision to discontinue coverage and terminate any and all benefit plans must be communicated to the employee within 30 days or less.
In previous natural disasters, many governmental agencies and entities have chosen to extend their deadlines for certain reports and paperwork. However, while it is hoped that the government will provide some deadline extensions, employers should not operate in anticipation of such, since with every natural disaster the government's responses have varied.