When disaster strikes

Tamsen Leachman

Wages: Whether employers have a legal obligation to pay wages depends on whether the employees involved are exempt under the Fair Labor Standards Act (“FLSA”). Hourly, or nonexempt employees, must be paid only for actual time worked. Therefore, if hourly employees were unable to work either because their employer was closed or they could not get to work, they are not entitled to be paid for missed time. The law regarding exempt employees is different. Exempt employees, such as administrators and managers, are paid a salary and thus are treated differently. Under the FLSA, an exempt employee must be paid the full salary for any week in which s/he performs any work at all. If an employer closes the business for any reason – such as weather, fire, a power outage or the like – it must pay exempt employees their full salary for the week or risk losing the exempt status of its employees.

Family and Medical Leave Act: The FMLA (and its state counterpart – Washington Family Leave Act) grants eligible employees protected leave for their own serious health condition or the serious health condition of a child, spouse or parent that may arise as a result of a disaster.

Americans With Disabilities Act: If there is a disruption caused by a disaster, employees with disabilities may, in certain circumstances, be entitled to a reasonable accommodation by the employer so long as it does not constitute an undue hardship on the employer’s business. For example, if a disabled employee is reliant on public transportation to get to work and the service is interrupted, the employee may be excused from work during this time, allowed to work from home or provided assistance with taxi expenses.

National Labor Relations Act: Employees who refuse to work in what they consider an unsafe workplace may be protected under the National Labor Relations Act. For example, Section 502 protects employees from discharge for refusing in good faith to work in “abnormally dangerous conditions.” 

Occupational Safety and Health Administration: Employees have the right to refuse to perform a job if they believe in good faith that they are exposed to an imminent danger. “Good faith” means that even if an imminent danger is not found to exist, the worker had reasonable grounds to believe that it did exist. In such circumstances, there must not be sufficient time to wait for an OSHA inspector to arrive.

Natural and other disasters will, unfortunately, recur. Employers who develop disaster plans should give due consideration to the employment-related issues that are likely to arise and ensure that managers understand what is expected of them and required of employees.

Tamsen Leachman is a partner at Fisher & Phillips, specializing in labor and employment law. She can be reached at tleachman@laborlawyers.com or 503.205.8095.

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