Planning for the Next Hurricane: During and After a Storm

With the onset of the 2019 hurricane season and the effects of Hurricanes Michael and Irma still being felt by many, employers have a number of concerns. These concerns range from preparing facilities to determining whether a business will stay open. At some point, after decisions have been made about whether a business will stay open and if goods or people need to be moved out of harm’s way, the questions relating to employee pay may arise.

One question that is frequently asked is “Should I pay exempt employees who miss work due to bad weather conditions?” When it comes to deductions from exempt employees’ salaries, it is easy to get into trouble. The general rule is that an exempt employee is entitled to receive his or her entire salary for any workweek he or she performed work. This means, if the work site closes for a partial week due to bad weather conditions and the exempt employee has worked during that workweek, the employee is entitled to his or her full salary. However, if the employer has a leave benefit, such as paid time off (PTO), and has leave remaining, the employer can require the employee to use PTO for this time away from work. If the employee does not have any remaining leave benefit, he or she must be paid.

If the work site remains open during inclement weather and an employee is absent (even if due to transportation issues), the employee can be required to use PTO. If the employee does not have any PTO re-maining, the employer may deduct a full day’s absence from the employee’ s salary. 

Other issues that arise relate to what constitutes compensable time for non-exempt employees. The FLSA only requires that non-exempt employees be paid for the hours they actually work. However, those non-exempt employees on fixed salaries for fluctuating workweek(s) must be paid their full weekly salary in any week for which work was performed. Further, those businesses, such as hospitals and nursing homes that remain open during a storm and require employees to remain onsite during the storm may have to pay employees required to be onsite during a storm for all time they are at the employer’s place of business, as they may be considered to be “on call.”

It is important for businesses to plan in advance for the next hurricane. Such plans should include evaluating which employees may be required to continue working during a storm and what portion of their time during a storm is considered compensable.

Healthcare employers also have ACHA rules to comply with relating to storm preparation (not specifically related to employee compensation). For further information on these regulations see my colleague Steven Brownlee’s article, “Senior Living Providers: Are You Ready for Andrea, Barry, and Chantal?” at businessobserverfl.com/articles/williams-parker.

Jennifer Fowler-Hermes is a board certified expert in labor and employment law with Williams Parker.  She represents private, public, for-profit, and not-for-profit employers in a variety of industries with respect to litigation matters and managing risks to avoid litigation. Jennifer also serves as  editor of The Williams Parker Labor & Employment Blog (williamspark-er.com/LEBlog). She can be reached at jfowler-hermes@williamsparker. com or (941) 552-2558.