When Disaster Strikes, What Should and What Must An Employer Do?

Natural disasters leave visible signs of devastation everywhere:  destroyed homes, flooded roads, damaged infrastructure, broken families and fractured communities. This has been especially evident in the impact of recent mega-storms like hurricanes Harvey, Irma, and Maria, as well as with the wildfires that raged throughout the West Coast.

Long after the cleanup concludes and communities attempt to resume some normal pace of life, less-visible effects of natural disasters linger; namely sick, injured, and disabled loved ones.

When dealing with all of the severe impacts of these events, leaves of absence may seem like a low priority. Still, helping employees during stressful times, without additional worry, can go a long way in building a long-term, trusting relationship with them. With this in mind, it’s important that businesses have clarity around some of the key facts about federal, state and local regulations.

Here are some questions and answers to help employers.

Does an employer have an obligation to provide an FMLA leave of absence to employees during a natural disaster?

It depends on the reason for leave. Eligible reasons for FMLA leave don’t change during a natural disaster. Under the FMLA, there are a number of qualifying reasons for which an employer is mandated to provide leave, including:

Up to 12 weeks of leave for–

  • Childbirth and care for a newborn child.
  • Placement of a child for adoption or foster care.
  • Care for a child, spouse, or parent with a serious health condition.
  • Serious health condition of the employee.
  • Any qualifying exigency arising from a covered family member who served in the military.

And, up to 26 weeks to care for a service member or veteran family member with a serious injury or illness.

If the employee or their parent, spouse, or child have a physical or mental illness or injury that meets the definition of “serious health condition,” FMLA may indeed be appropriate.

Also, you have to consider employees who may have been on approved FMLA leave prior to the onset of the disaster.  Here you have to look to the “plant shut-down” rules, which tell us that if your business is shut down for one or more weeks, and employees are not generally expected to report for work, those days will not count against the employee’s FMLA entitlement.

Lastly, remember that the disaster may create after-the-fact effects or a disability, such as Post-Traumatic Stress Disorder (PTSD), that might qualify for FMLA leave and may trigger the need to engage the employee in the Americans with Disabilities Act (ADA) interactive process.

Are there any other state or local leaves that may apply?

Yes, there are several. Employers need to remember that leave laws like the FMLA do not exist in a vacuum and that certain states and localities have laws and regulations that extend beyond the FMLA.

For example, there are school- or childcare-related leaves – where employers may be obligated to provide certain amount of unpaid leave if school or childcare is unavailable due to a disaster. In addition to that, “emergency responder leave” may also apply. Volunteer firefighters, reserve police officers, and emergency rescue personnel may be entitled to take leaves to perform emergency duties.

Also, some states broaden the applicable family members covered by leave laws. Hawaii law extends the list of eligible family members to grandparents-in-law. And Illinois and Oregon have regulations that require bereavement leave.

In addition to these instances, paid sick leave and paid family leave may also apply.

Does the ADA also apply during a natural disaster?

Again, it depends on the facts and circumstances. The ADA is a complex federal law – which may require an accommodation that could include a leave. The ADA requires the employer to engage in an interactive process to determine whether the law applies to the employee’s circumstances, the extent of the employee’s needs and the options available to accommodate him or her.

It is the employer’s obligation to engage in the interactive process, even if the employee does not explicitly request a reasonable accommodation/leave, as long as the employee provides the employer notice that she or he may have a qualifying need. The employer must work with the employee to determine if the employee has a qualified disability, and if so, whether the employee can perform the essential functions of his or her job, with or without reasonable accommodation.

What will be considered a reasonable accommodation will depend on many factors, including the size of the employer, the nature of the employee’s job duties and the potential cost to the employer of offering the particular accommodation.

An additional wrinkle can come into play if an employee needs to take leave as a result of an injury sustained in the workplace. In such a case, the employer may have separate obligations under the FMLA, the ADA and state worker’s compensation laws. As you can imagine, navigating this type of situation is complex and, therefore, can become tricky.

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How can employers support their employees in these circumstances?

Employers can support their employees by expressing empathy and understanding towards their needs in addition to complying with the law. They can simplify the leave application process which will provide employees time to focus on themselves, their families, and the work they are continuing to do for the employer. They may provide paid leave, in addition to what is required by law.

Employers also can be flexible in helping determine reasonable work accommodations, such as allowing the employee to work from home, work remotely, or take periodic leave to attend to their own or their family member’s needs. For example, an employee that needs to take their parent to physical therapy could arrange to take off a few hours every day to do so. That way, they still are performing their job on a semi-regular schedule.

Also, to assist employers post-Harvey, Irma, and Maria, Congress enacted disaster tax relief which includes an Employee Retention Credit to assist businesses adversely affected by the storms. The bill gives employers that conducted business in a disaster area a tax credit up to 40% of the first $6,000 in qualified wages paid to each eligible employee during the period of inoperability through December 31, 2017.  This relief package can be a huge assistance to employers to help them continue to support themselves and their employees during difficult times.

How does this lead to increased retention and engagement?

Companies should show that they’re considering the wellbeing of employees before disaster strikes. For instance, employees may need a childcare program, adult daycare program, sick child care, wellness program (e.g. stress management, or in general, an Employee Assistance Program).

Employers might want to consider implementing company programs that provide monetary assistance in the form of paid leaves to employees in these situations. This type of tangible help may go a long way to creating a more engaged workforce. And when engagement is high, the company may experience fewer attrition issues.

Taking care of themselves or an injured or disabled loved one is stressful. Employees should feel that their employers are working with them, not against them. While it might be a complex process, demonstrating compassion in times of crisis may lead to fundamentally loyal and satisfied employees.