Hurricane Harvey Presents HR Issues For Employers

When confronted with a natural disaster employers may be forced to shut down and/or employees may be unable to report to work.  These circumstances raise issues regarding entitlement to pay.

Under the Fair Labor Standards Act (FLSA), non-exempt employees must only be paid for all hours worked.  Thus, they are not entitled to pay during a shutdown period when they do not perform any work.  An employer may permit its non-exempt employees to work from home and pay them for the hours they work remotely.  Care must be taken to ensure that these employees account for the hours that they work and the employer must trust that they are reporting honestly, as employer’s ability to monitor such work is limited.

The FLSA requires that exempt employees be paid their weekly salary for any week in which they perform some work for their employer.  If an employer is shut down for part of a week, exempt employees are entitled to their regular weekly salary.  If a shutdown lasts for a full week, exempt employees need not be paid for that week, unless these employees spend any time working remotely, in which case these employees must be paid their full weekly salary.

If an employer’s business is open, but employees are unable to get to work, non-exempt employees are not entitled to be paid because they did not perform any work.  Employer may allow non-exempt employees to use vacation time in this circumstance.  Exempt employees are not entitled to be paid for full days in which they perform no work even though the business is open.

An employer may choose to pay non-exempt employees for time they don’t work due to a shutdown. This time is not considered “hours worked” and is therefore not counted toward the 40 hours for overtime purposes.

If an employee suffers from anxiety due to a hurricane and medical certification of this condition is provided, employee may take up to 12 weeks of leave under the Family and Medical Leave Act (FMLA).  In addition to the FMLA , an employee suffering from a disability due to the hurricane, such as depression or anxiety, may request a leave of absence as a reasonable accommodation under the Americans With Disabilities Act (ADA).

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