Florida Employers: It’s Hurricane Season—Are You Ready?
Florida Employers: It’s Hurricane Season—Are You Ready?
As we move into the 2022 hurricane season (June 1 through Nov. 30), there is no better time than now for Florida employers to put emergency action plans in place for dealing with natural disasters and other emergencies.
In the late hours of Dec. 10, 2021, an EF4 tornado roared through Mayfield, Kentucky, causing catastrophic damage. One large building in particular, used as a candle factory by Mayfield Consumer Products, was almost completely leveled. Shockingly, it was discovered that dozens of employees were working a late shift at the facility when the tornado hit. Many of them were injured, and nine employees lost their lives.
In the aftermath of the devastation, some of the survivors claimed that they wanted to leave the factory before the tornado hit but were threatened with termination if they did so. A federal court lawsuit brought by employees is currently pending in the Western District of Kentucky.
This is a cautionary tale for employers in Florida, which has its own natural disasters to contend with—tropical storms and hurricanes, thunderstorms with lightning, wildfires, floods and tornadoes. Meteorologists at Colorado State University are calling for 20 named storms this year—with 10 of those being hurricanes, five of which are expected to develop into “major hurricanes.” Accordingly, as we move into the 2022 hurricane season (June 1 through Nov. 30), there is no better time than now for Florida employers to put emergency action plans in place for dealing with natural disasters and other emergencies.
Employers are responsible for protecting employees from unreasonable danger in the workplace. This does not mean that places of employment are required to shut down for every thunderstorm, and some employers may never be able to close (like hospitals and law enforcement agencies). But every employer should take the time to identify reasonably foreseeable emergencies, including natural disasters, and then figure out how to keep employees safe in the event of such emergencies. As examples: procedures to be followed if an evacuation is necessary due to fire or flooding, and identification of a safe room for employees to report to in the event of a tornado or severe storm.
OSHA defines a workplace emergency as a natural or man-made “situation that threatens workers, customers, or the public; disrupts or shuts down operations; or causes physical or environmental damage.” A good resource for employers is a booklet titled How to Plan for Workplace Emergencies and Evacuations published by OSHA and the U.S. Department of Labor.
Communication With Employees
In the event of an emergency, employees will need to know what to do: when they should act, where they should go, what they should take with them, and whether there are any company closures. In the midst of chaos is no time to think “how do we let everyone know what’s happening?” Thus, a procedure for communicating information to employees is a key component of an emergency action plan. Current contact information for the employees should be maintained and routinely updated. Some employers implement a communication tree, where a few employees are designated to each call a list of people, each of which calls another list of people, and so on until everyone has been contacted. Other employers maintain a call-in number to use during emergencies which plays a recorded message or utilize a group text message. Whatever procedure the employer chooses, someone should be placed in charge of ensuring that it is followed and that all employees have been contacted.
Generally speaking, under the Fair Labor Standards Act employers are required to pay non-exempt employees only for hours actually worked, and it does not matter whether the reason for not working is the result of a decision made by the employer or employee. For example, if the employer decides to close the workplace and sends employees home in preparation for a potential natural disaster, there is no obligation to pay non-exempt employees for any time that they are not actually working after the closure. There are potential exceptions for waiting time or on call time, like if the power is out at the workplace but the employees are required to stick around in case it comes back on, and for nonexempt employees who receive fixed salaries for fluctuating work weeks.
As for exempt employees, if there is any work performed during the week, the employees are required to be paid their full weekly salary. Therefore, if a workplace is closed due to a natural disaster or other emergency for less than a full workweek, the employer will be required to pay the full salaries of the exempt employees for the week. Closures of an entire week, where the exempt employees do not perform any work during that week, do not require payment.
Employers can require employees to use PTO or other leave when they are unable to or choose not to work because of a natural disaster or other emergency, but this policy should be clearly communicated to employees (ideally in the employee handbook).
Employers should also give thought to how they maintain payroll and time keeping records. In the event of catastrophic damage to workplace records can be lost, making it difficult or impossible for employers to process payroll. Appropriate backups, with appropriate protections, are a very good idea.
Requests for Leave and Accommodation
Following a natural disaster, employers can expect to be hit with increased requests for leave and accommodation. Although the Family Medical Leave Act does not require employers to give employees time off to address personal matters, like making repairs to their home, it would require leave for employees who cannot perform their jobs because they suffered a physical or mental illness or injury (a “serious health condition”) as a result of the natural disaster, or must care for a spouse, child, or parent with a serious health condition. Moreover, some employees may suffer significant impairments as a result of a natural disaster that constitute a disability under the Americans with Disabilities Act. Employers need to be prepared to timely address these requests.
The Importance of Training
Once employers prepare an emergency action plan, it is important to communicate the plan to employees, and then the employees should be trained on it. In a crisis, employees are going to be much more likely to remember the plan and their role in it if they have been properly trained. There is a reason why buildings and schools have fire drills; the act of physically going through the motions of an organized evacuation makes it much more likely that the evacuation plan will be followed in the event of a true emergency. The same holds true for other portions of an emergency action plan.
Employers should act now to implement or update their emergency action plans, so that they can protect their employees, minimize confusion during an emergency, and get back to work as quickly as possible following any disaster-related shutdowns.
Reprinted with permission from the August 8, 2022 edition of Daily Business Review © 2022 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited, contact 877-257-3382 or email@example.com.