Who could have predicted, as recently as January, that our year would bring us not only an unprecedented global health pandemic but also a busy hurricane season? Yet, here we are, in August 2020, doing our best to stop the spread of COVID-19 while, at least in Houston and the surrounding areas, preparing for Hurricane Laura to make landfall (and counting our lucky stars that Laura’s companion storm, Hurricane Marco, didn’t cause disruption for our region). Given these conditions, and as we in Houston continue to monitor Laura, here are five quick reminders for employers preparing for severe weather, including thoughts about how preparations differ in the time of COVID-19.
No. 1: Remember that employee safety is paramount.
Keeping employees safe has always been the lodestar of employer hurricane preparedness, but COVID-19 has upped the stakes. It is hard to think of a time in recent history when so much attention has been paid to employee health and safety in non-safety-sensitive workplaces such as those maintained by employers operating in food service, retail, and professional services. But COVID-19 brought into sharp focus the fact that all employers, in all industries, are subject to Section 5(a)(1) of the Occupational Safety and Health Act (“OSH Act”), the so-called General Duty Clause, providing that “[e]ach employer shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.”
With respect to responsibilities under the OSH Act, the Occupational Safety and Health Administration (“OSHA”) maintains a Hurricane Preparedness and Response landing page (accessible here) containing employer resources, including OSHA’s eMatrix (accessible here), outlining the activities most commonly performed during hurricane response and recovery work and providing detailed information about the hazards associated with those activities.
But what about employees who are still working from home because of COVID-19? The key here is analyzing how work-from-home arrangements may impact employees preparing, often with little time, for a coming storm. For example: Will large numbers of employees working from home on a day-to-day basis require access to the office to gather materials that may be needed during the storm? If so, how will the employer ensure that workplace safety rules implemented in response to COVID-19 will be observed?
No. 2: Remember that communication is critical.
Effective employer severe weather preparedness plans all share at least one element—a focus on communication. Employees facing severe weather threats often must make quick decisions upending normal routines, such as whether to hunker down or evacuate. And employers therefore must have multiple avenues for quick, real-time communication—e-mail addresses (including personal addresses) and mobile phone numbers often are most useful. If your organization has not yet created an employee directory with emergency contact details allowing information about storm preparedness and response to roll out quickly across your entire workforce, e.g., through text message or other real-time updates, it would be wise to do so.
Effective communication about severe weather is even more critical in light of changes to normal working arrangements that have been adopted this year in response to COVID-19. Many employees continue to work from home, and communication is less frequent than before. Some employees may be working remotely from locations distant from the office, in which there is no risk of severe-weather impact. What these conditions likely mean is that, in the era of COVID-19, over-communication is effective communication—employers must find ways to regularly engage employees to keep lines of communication open and to ensure employee safety.
No. 3: Remember that severe weather often comes with wage-and-hour risk.
Having partnered with many employers to manage hurricane preparedness and response over the years, I can say with confidence that one of the most significant labor-and-employment risks arising from severe weather is wage-and-hour compliance. A few key reminders in this regard:
- An exempt employee must be paid her regular salary for any workweek in which work is performed, even if the employer is closed for part of the week because of severe weather.
- Under federal law, a non-exempt employee generally must be paid only for hours that she actually works. If the employer closes because of severe weather, non-exempt employees need not be paid for time off of work during the closure.
- Hurricanes and other severe weather events do not suspend wage-and-hour compliance obligations. Even if times of natural disaster, overtime pay requirements remain for non-exempt employees, and employees cannot “volunteer,” e.g., agree to perform work without compensation, for a for-profit business, even if the work performed is in response to a hurricane.
- From a wage-and-hour standpoint, one of the trickiest needles to thread in response to COVID-19 has been ensuring accurate timekeeping for non-exempt employees working from home. Severe weather situations create even more risk in this regard—in preparation for a storm, employees may scatter and they may be called on to perform work in unusual locations, e.g., while evacuating, from hotels rooms. In preparing for a severe weather event, employers must clearly communicate expectations regarding reporting of all hours worked by non-exempt employees and take measures to ensure that all time worked is reported.
No. 4: Remember that closings necessitated by severe weather may impact employee leave entitlement.
Although the implementing regulations for the Family and Medical Leave Act (“FMLA”) do not address natural disasters, they provide that if an employer’s business activity has temporarily ceased such that employees are not expected to report to work for one or more weeks, the days on which the employer is closed do not count against the leave entitlement of an employee on FMLA leave. Conversely, if an employer closes because of severe weather for a period shorter than a week, the FMLA’s regulations regarding holidays likely would apply—“the fact that a holiday may occur within the week taken as FMLA leave has no effect; the week is counted as a week of FMLA leave.”
As to a hurricane-related closure’s impact on paid leave available to an employee under the FFCRA, the rule is likely this: If an employer is closed as a result of severe weather, an employee likely is not entitled to Emergency Paid Sick Leave or Emergency Family and Medical Leave under the FFCRA during the closure. The FFCRA’s implementing regulations do not expressly address weather- or disaster-related closures, but they provide that, if an employer has shuttered a worksite for reasons other than COVID-19 (e.g., lack of business, no work to perform), FFCRA paid leave is not available during the closure.
No. 5: Remember that state law and local ordinances may impose employer requirements more stringent than those imposed by federal law.
In addition to keeping a firm handle on federal requirements, employers preparing for and responding to weather events should consult state and local law to ensure compliance. Two examples:
- Chapter 22 of the Texas Labor Code prohibits an employer from discriminating against an employee who “leaves the employee’s place of employment to participate in a general public evacuation ordered under an emergency evacuation order.”
- Some states have wage-and-hour regulatory regimes considerably more rigorous than that imposed by federal law. For example, some states (and more recently, localities) have enacted show-up pay requirements that impose on employers an obligation to pay a minimum amount to employees who show up for work even if no work is performed, e.g., work is called off because of severe weather.
The Bottom Line for Employers
2020 has already presented employers with more tough labor-and-employment issues than any other year in recent history. Now, employers face another challenge: Effectively preparing for, and possibly responding to, severe weather events with the overlay of the COVID-19 pandemic. While the list of labor-and-employment-related issues warranting close consideration and careful planning seems ever-growing this year—a year during which resources available for such consideration and planning are exceedingly scarce—as the reminders above make clear, there is no “easy fix” for severe weather preparedness. We encourage all employers to make creating and updating hurricane preparedness and response plans a priority, especially in light of the unique challenges imposed by COVID-19.