2017 saw its share of natural disasters in California, including devastating wildfires. Mudslides and an earthquake already have occurred in 2018. Along with the terrible losses, a natural disaster can significantly disrupt business operations, affecting employees and employers alike. This article addresses some common issues employers may encounter during and after a natural disaster, including paying employees, handling leave requests, and managing safety concerns.
Compensation Issues. Employers must be prepared to answer questions about whether employees are entitled to be paid when operations are temporarily disrupted by a natural disaster.
Employers typically are not required to pay non-exempt employees who are not performing work, regardless of whether the absence is due to a workplace closure or the employee’s decision. However, employers must consider whether reducing, temporarily suspending, or closing operations mandates “call-in” or “reporting time” pay under applicable Wage Orders. The Wage Orders contain an exception to reporting time pay obligations, when a business must close due to threats, utility interruptions, or disasters out of the employer’s control. So, employers must evaluate whether an exception applies to the situation. Similarly, keeping employees at the worksite while determining whether operations should continue may be considered compensable hours worked, even if employees are merely “standing by.”
“Exempt” employees (such as certain managers), who are paid a weekly salary, are entitled to their full weekly salary if they perform any work during a given workweek, even if the worksite is closed for part of the week. This issue may arise when a business closes in the middle of a workweek. No salary is due for full workweek absences.
In some cases, employers may choose to pay full salary, but reduce exempt employees’ paid time off or vacation balances to account for time off. But California law is unclear whether that is allowed when the exempt employee is off work for a partial week because work is unavailable.
If the worksite is open, on the other hand, an exempt employee who chooses not to work (e.g., who stayed home to deal with the effects of the disaster, or was forced to evacuate) is considered voluntarily absent for personal reasons. In that case, the employer may require the employee to use accrued leave. Full-day absences may be unpaid if the employee has no accrued leave.
Employers should consider and communicate detailed information about whether and how employees may work from home during an emergency. Time a non-exempt (hourly) employee spends working from home must be compensated in most cases. A remote working policy should include procedures for recording hours worked and capturing reimbursable expenses (e.g., telephone and internet usage). Additionally, employers should remind employees that the usual rules regarding meal periods and rest breaks still apply when working remotely.
Unemployment and other Assistance. Employees who are unable to work due to a worksite closure may be eligible for unemployment benefits from the California Employment Development Department (EDD). Individuals who do not qualify for unemployment benefits from California may qualify for the federal Disaster Unemployment Assistance (DUA) program.
When the Governor declares a state of emergency, California employers who are directly affected by the emergency or disaster may request an extension of up to 60 days to file state payroll reports or deposit state payroll taxes, without penalty or interest. Such requests must be submitted in writing to the EDD.
Leave Issues. Natural disasters mean some employees will be called into service as first responders. Under California law, employers must allow volunteer firefighters, reserve peace officer, or emergency rescue personnel to take a job-protected leave of absence to perform their emergency duties. The leave may be unpaid. There are no advance notification requirements, except for certain health care industry employees. Workers called up for duty in the national guard may be entitled to similar unpaid, job-protected leave.
Employers with 25 or more employees must allow parents (including stepparents, foster parents, grandparents, and guardians) with children enrolled in a school (kindergarten through Grade 12) or a licensed day care to take off up to 40 hours per year when the school or day care is closed due to a natural disaster. The employee must provide notice to the employer of the need for such time off.
An employee may need time off if he or she, or a family member, has suffered a serious injury or illness resulting from the natural disaster. The employee may qualify for paid sick leave under the Healthy Workplaces, Healthy Families Act, or a similar local law. Employers should also determine if the employee is eligible for leave under the federal Family and Medical Leave Act (FMLA) and/or the California Family Rights Act (CFRA).
Safety Issues. The California Occupational Safety and Health Act (Cal-OSHA) requires employers to maintain “safe and healthful working conditions.” There is no exception for workplaces affected by a natural disaster. If a workplace is unsafe due to damage, or the atmosphere is unhealthful due to smoke, employers must assess whether working conditions are sufficiently safe. It may be necessary to furnish proper training or protective equipment before requiring employees to assist with recovery.