Hurricane Sandy Aftermath a HR Nightmare for Workers and Their Employers

“Natural disasters like Hurricane Sandy can create a host of employment challenges for employers, from wage-hour concerns to employee leave and employee safety.” (Schnader)

As the country begins to understand the profound damage wrought by Hurricane Sandy, those folks who managed to make it through relatively unscathed are finding a new nightmare in the wake of the storm: how to return to a normal work routine.

To help employers sort through the challenges, seven questions (and answers):

1. Do I have to pay employees who couldn’t get to work?

“Generally, employers are not required under federal law to pay non-exempt employees for hours not actually worked by them, including absences caused by a natural disaster.” (Schnader)

2. What if my employees do some work from home?

“Any exempt employee working from home must be paid. Any non-exempt employee who works from home during the storm (e.g., responding to emails, participating in conference calls, working remotely on the computer) must be paid for actual time worked. Such employees should be advised to carefully track working time.” (Fox Rothschild)

3. Do I need to pay workers who are on call?

“Under the FLSA, if the employer requires an employee to be on-call during the storm and the employee cannot effectively use the time for his or her own purposes, the employer must pay the employee for the on-call time. Employers are not required to pay employees who are at home and available to the employer but able to use the time for their own purposes. State laws may impose different or more stringent requirements for on-call time.” (FordHarrison)

4. Am I required to pay an employee for time spent commuting to work?

“Hourly, non-exempt employees only have to be paid for actual time worked (subject to exceptions such as ‘reporting time’ pay laws such as those in New York, New Jersey, Connecticut, New Hampshire and Massachusetts), unless a contract provides otherwise… If [an] exempt employee tried to get to work [but could not], as long as she did not spend any time performing work while commuting [an employer is not required to pay her].” (Fox Rothschild)

5. Can I make workers use vacation time when my business is forced to close?

“The employer has the discretion to allow or require non-exempt employees to use paid leave available to them for such absences… Exempt employees generally must be paid for full or partial day absences caused by office closures lasting less than one work week due to a natural disaster, if s/he performs any work in that work week… However, subject to the terms of any collective bargaining agreement or employment policy, an employer may require exempt employees to use paid leave available to them.” (Schnader)

6. Can workers take FMLA leave during and after a natural disaster?
“[T]he FMLA does not, in itself, require employers to give employees time off to attend to personal matters arising out of a natural disaster, such as cleaning a flood-damaged basement, salvaging belongings, or searching for missing relatives. However, an employee would qualify for FMLA leave when, as a result of a natural disaster, the employee suffers a physical or mental illness or injury that meets the definition of a ‘serious health condition’ and renders them unable to perform their job, or the employee is required to care for a spouse, child or parent with a serious health condition who is affected by the natural disaster.” (Franczek Radelet)

7. Can employees sue me for work injuries that happen because of the storm?

“Generally, employees who are injured during the course and scope of employment are limited to workers’ compensation claims and cannot sue the employer in court over the injuries. If, however, the injuries are the result of an employer’s deliberate or intentional conduct rather than an accident, the employee may have the ability to sue the employer in state court.” (FordHarrison)

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