With hurricane season upon us, employers are justifiably concerned about the potential impact of a natural disaster on their business. A hurricane, natural disaster, or any other crisis in the workplace, can bring a business to a screeching halt and devastate the lives of a business’ most valuable asset, its employees. This article was first published in the wake of Hurricane Katrina based on lessons learned in managing through that crisis. These lessons continue to ring true year after year, crisis after crisis. Thus, we continue to update and republish this article each hurricane season.
To minimize the impact of a natural disaster, employers should have plans in place before disaster strikes, including, for example, a crisis management plan, a communications plan, and a disaster response and recovery plan. These plans must take into account the effect a catastrophe may have on workers and include ways to help impacted employees return to work as soon as practical to ensure continued productivity of your workplace even in the face of personal loss. Any enacted plan should consider the application of relevant federal and state laws to ensure compliance and avoid any employment-related lawsuits or any agency enforcement actions following a natural disaster.
Determine individual crisis management responsibilities.
Employers should identify those employees who are essential to each business function, determine whether they will be needed on-site in the days preceding and following a natural disaster, and develop a plan or meet with key employees to communicate and identify areas of accountability and responsibility and how each employee should perform his or her emergency-response duties effectively. You also should identify all other non-essential employees who may be needed on-site preceding and following the disaster and include them in your communications.
Communicate with employees before disaster strikes.
Employers should communicate their disaster plans to all employees to ensure everyone understands their respective roles, responsibilities, and expectations. You should be consistent in your communication with employees about any disaster plans. Doing so will help avoid confusion and prevent employees from having conflicting understandings of the situation or the roles and duties expected of each.
Establish clear communications channels.
In the days leading up to a hurricane or other natural disaster, all employees should know the appropriate channels of communication for when disaster strikes, including, for example, an inclement weather hot-line to inquire about weather conditions and the corresponding status of the office and expected attendance from employees. Such efforts will ensure consistent and effective communication with employees, leaving no question as to their expected attendance or confusion as to where to go to obtain important information concerning the workplace. Employers should organize their plans ahead of time and be proactive in communicating the importance of the assigned channels of communication to all employees.
Keep leadership visible.
Employers should make sure all employees know the company’s lines of communication for when disaster strikes, as well as who is in charge of each aspect of the company’s response and recovery effort—and what those efforts are. Effective communication and direction from management preceding, during, and following a natural disaster not only will ensure all employees stay on the same page, it also will instill confidence and a sense of stability for employees. Disarray during a natural disaster not only creates havoc for an employer, but it also can lead to a higher incidence of attrition following a disaster as loyal and valuable employees may sense that the company is disorganized, lacks leadership or is not prepared to handle difficult times. While employers sometimes make mistakes during unexpected difficulties, you’ll have a better chance of establishing consistency and stability if company management takes an active role. Furthermore, restoring order and direction will give employees the confidence to stay with your company and work together while responding to and recovering from the disaster.
Be familiar with federal, state, and local laws.
Employers should be cognizant of the federal, state, and local laws that can be implicated during and after a natural disaster. These laws can shape your workplace policies surrounding your disaster planning and recovery efforts. Some laws you should be familiar with include the Fair Labor Standards Act (FLSA), the Family and Medical Leave Act (FMLA), the Americans with Disabilities Act (ADA), and the Worker Adjustment and Retraining Notification Act (WARN).
The Fair Labor Standards Act (FLSA) distinguishes between exempt and nonexempt employees. The FLSA requires you to pay an exempt employee’s full salary if he/she works less than a full workweek as the result of a natural disaster, whereas you must pay a nonexempt employee only for the hours he/she actually works. Thus, you are not required to pay a nonexempt employee if you are unable to provide work to that employee because of a natural disaster. There are exceptions to these rules. Therefore, it is advisable to consult with legal counsel to ensure your compliance with the FLSA. Employers also should be aware of any state or local laws that may provide employee protections beyond the FLSA.
After a natural disaster, it may be necessary to permit some employees to work remotely. If you allow employees to work remotely, be sure to set up a system for them to keep track of their time and report their hours worked from their remote worksites in the days preceding and following a natural disaster. If you lack a proper mechanism to capture time worked by your employees remotely, you could be exposed to liability under the FLSA as well as state or local wage and hour laws.
You also should also be cognizant of the FLSA when deciding whether to allow employees to volunteer for any work-related or employer-sponsored recovery efforts after a natural disaster. The FLSA may require compensation for volunteer time depending on the nature and circumstances of the work performed by volunteer employees. In addition, other federal, state, and local laws may apply and impose certain obligation on employers when employees volunteer for hurricane relief efforts for other entities and miss work as a result.
Under the Family and Medical Leave Act (FMLA), qualifying employees are entitled to job-protected leave if they are unable to work due to a serious health condition resulting from a natural disaster. Employees also may qualify for FMLA leave if they need to care for a spouse, parent, or child suffering from a serious health condition or medical emergency caused by the natural disaster.
Under the Americans with Disabilities Act (ADA), employees who become physically injured, or suffer trauma from the natural disaster, including anxiety, depression, or a mental illness, may be entitled to reasonable accommodation by their employer as long as it would not place an undue hardship on the operation of their employer’s business.
The Worker Adjustment and Retraining Notification Act (WARN) imposes notice requirements on employers with 100 or more employees in advance of certain plant closings and mass layoffs. The WARN Act includes an exception for natural disasters when a plant location closes due to a natural disaster, but the employer still must give as much notice to its employees as is “practicable.” The WARN Act is very complicated; so employers contemplating a facility closure or layoff as the result of a disaster should consult with labor counsel before proceeding.
Train managers and supervisors on how to manage employees coping with the effects of a workplace crisis.
When employees return to work following a hurricane or other natural disaster, your managers and supervisors are the people who deal directly with your employees. It is important to educate managers and supervisors ahead of time about the possible effects of a crisis or disaster on employees and how to spot indicators of emotional or behavioral conditions that may need attention. You may need to hire a consultant to meet with your managers and supervisors, or you might take advantage of free booklets and services provided by government agencies or private relief organizations. At a minimum, managers and supervisors should know to refer affected employees to an employee assistance program (EAP) or HR for the identification of other sources of professional assistance.
Employers must exercise caution and be in compliance with all OSHA regulations when asking employees to assist with preparing for and/or cleaning up after a natural disaster. Employers should ensure that their workers have the necessary safety or personal protective equipment, know where to go and know how to keep themselves safe when an emergency occurs. https://www.osha.gov/SLTC/emergencypreparedness/
Finally, cut employees some slack.
While you need not replace order with chaos, you should treat your employees fairly and with compassion when it comes to getting things back on track. Your employees likely will need some time to get their personal lives in order, whether they need time to grieve for loved ones, make housing or financial arrangements, or seek medical attention. Revisit your leave policies and benefits to determine whether the nature of the crisis warrants a modification of the benefits you provide or extended leave, even if only temporarily until the crisis passes. Keep in mind, though, that all policies should be applied uniformly, whether modified or not. Avoid jumping to conclusions if an employee misses work, makes a mistake, or does not seem his or her usual self, and consider EAP referrals or other benefits if an employee appears to be slipping in performance or behavior.