While we are all busy thinking about ways to safeguard ourselves, our families, and our businesses during the coronavirus pandemic, let us not forget that hurricane season is just around the corner. It runs from June 1 through November 30. Unfortunately, NOAA has predicted a busy 2020 Atlantic hurricane season with a forecast of 13 to 19 named storms. There is no time like the present to get prepared.
A comprehensive hurricane plan to protect your business is always a good start. Your plan should be reviewed annually for needed changes and improvements. Prior to a storm you should consider your risks – can your business operate without computers, copiers, files, electric, water or internet? How will you make payroll? Will employees be able to get to work? Next, develop a plan to address the risks and to safeguard your employees, business and equipment. Remember to order storm equipment and supplies early, such as batteries, water, file boxes (waterproof?), plastic sheeting, extra garbage bags, and duct tape. Don’t forget to update current employee, client, customer and vendor contact information and to print copies in case you cannot access these electronically. You may be forced to use cell phones and personal email addresses to communicate during and after a storm. Designate an emergency response team and provide each team member with a list of employees for whom he or she is responsible for contacting after the storm has passed. Provide information on the company’s voicemail system and website so that employees can check the status of the business’s operations and receive updates.
Hurricane-related questions begin to percolate this time of year. A few answers follow:
Many of my employees are currently working remotely due to the pandemic, what additional issues do I have to consider?
Establish a policy for employees to follow regarding expectations for securing and protecting at home business equipment that may include locking file drawers, safeguarding papers, unplugging and turning off computers, covering equipment with plastic and placing it in a safe place. Do your essential employees have an analog telephone and landline available if the power is out? Do your essential employees have battery backups or chargers for their laptops or cell phones?
Do exempt employees get paid during a hurricane?
An exempt employee is entitled to his or her entire weekly salary for any week in which the employee has performed work. That is, if your business closes for a few days during a hurricane and the employee performed any work during that week, the employee is entitled to his or her entire weekly pay. However, the employer is permitted to require the employee to use unused PTO for days where no work was performed, but if the employee has no unused PTO, the employer must pay the employee. If your business remains open and an exempt employee chooses not come to work, you do not need to pay the employee for that day. You can treat the day off as a personal absence and either dock the full day’s pay or require the employee to substitute paid leave for the absence. However, if the employee does any work from home that day, you must pay the employee the full day’s salary.
What about non-exempt employees?
Non-exempt employees must be paid for all hours they actually work, including any work from home. Be sure to establish a good policy regarding timekeeping – even for work at home. During a hurricane this is especially true. Keep in mind that if you are unable to provide work to an employee due to a hurricane, you are not required to pay wages. But, like exempt employees, any non-exempt employee paid under a fluctuating workweek salary must be paid their full weekly salary for any week in which they perform work.
What about waiting time?
Employees are entitled to be paid for waiting time. If an employee is asked to go into work to wait for something – for example the air conditioning to be turned on or a delivery – then that time must be paid.
Can an employee volunteer their time?
Be wary of permitting employees to volunteer to help after a hurricane. Employees must be paid for volunteer services if they are performing any duties regularly performed by employees. Also, employees must be paid for assisting with any office cleanup activities.
Can employees donate their unused PTO time to co-workers in need?
Now is a good time to consider whether your business will permit such donations to be made and, if so, what the implications may be. Have a policy and stick to it.
Must an employer close its business during a hurricane?
OSHA requires that an employer provide its employees with a place of employment that “is free from recognizable hazards that are likely to cause death or serious harm to employees. “An employer must use it best judgment to determine whether a hurricane would impose a substantial threat to its employees. Employers have a legal obligation to provide employees with a place to work that is free from hazard.
Keep in mind that hurricanes don’t relieve employers of their obligation to comply with the ADA, FLSA, FMLA, TITLE VII and other laws. You must continue to pay employee wages, keep proper records and make employment decisions free of unlawful discrimination.
Arthur has already come and gone. We can all hope that Bertha is far behind.
*Special thanks to Lynn Derenthal, who assisted in the drafting of this post. Lynn is a Paralegal in our Fort Lauderdale office.