Navigating Natural Disasters During A Pandemic ' Key Considerations For Your Workforce

• Published date: 01 September 2020
• Law Firm: Littler Mendelson
• Author: Ms Kimberly Miers, Mishell Parreno Taylor and Andrew Gray

In the midst of raging wildfires in Northern California and the aftermath of hurricanes Laura and Marco in the Gulf states, many employers are wondering how to respond and what happens next, particularly where employers have already taken measures in response to COVID-19. After the waters and fires subside, employers will face a host of legal and practical issues across multiple jurisdictions. This article details some of the many employment questions that may arise in the near term and highlights key considerations in the impacted jurisdictions.

Wage and Hour Issues

There are several payroll-related concerns that can be triggered by an emergency situation.¹ We start with a refresher on who must get paid when operations are shuttered due to weather:

Non-Exempt Employees. Under the Fair Labor Standards Act (FLSA), non-exempt workers must be paid only for the time they work. As a result, employers need not compensate non-exempt employees who are not working because of a storm or other natural disaster. Notably, it does not matter whether the absence is based on the employer's decision to close a worksite or the employee's decision to stay home (or evacuate). If the worksite is open, but the employee decides to stay home or to leave a shift early, the non-exempt employee does not need to be paid for the hours missed. Similarly, if the employer is operational, but a remote-work employee loses power, the non-exempt employee need not be paid during such time.

There may be exceptions during a weather event for waiting time, or on-call time. The FLSA considers employees to be "on call" if they must remain on the employer's premises and are unable to use their time for their own purposes.² Thus, for example, employees whose homes or work location have lost power, and are required to remain at a location in case power returns, should be paid for the time spent holding down the fort despite their inactivity. Moreover, California also obligates employers to compensate employees who are subject to the control of the employer, even if the employees are not required to remain on the premises.³

An additional consideration specific to California is the potential obligation to pay reporting time pay. California wage and hour law requires that employees who report to work on a scheduled work day, but who are not utilized or are given less than half of their usual or scheduled day's work, be paid for half of that usual or scheduled day's work at their regular rate of pay. However, reporting time pay requirements do not apply in certain emergency situations including if: (1) civil authorities recommend closure of the workplace; or (2) the disruption is caused by an act of God or is otherwise outside the employer's control. As a result, California employers electing to close early as a direct result of fires should be careful to articulate their reasoning to employees.

A further wage and hour consideration for California employers is that split shift premiums may apply if workers are asked to work split shifts during this uncertain time. With minimal exception, a California employee working a split shift must be paid an amount that is at least equal to the minimum wage for the hours worked in a day, plus one hour. Whether an employee is entitled to a split shift premium depends on the number of hours worked and the employee's regular rate of pay.

Exempt Employees. When an employer shuts down its operations because of adverse weather conditions for less than a full workweek, exempt employees must be paid their full salary.⁴ This rule also applies if exempt employees work only part of a day. Thus, if an employer decides to send staff home early due to deteriorating conditions, it may not dock exempt employees' pay. Indeed, if an employer deducts from the employee's salary in this situation, it risks losing the exemption applicable to that employee. What is more, these same considerations apply to remote-work employees: where an employer shuts down operations because of adverse weather, or where a remote-work employee loses power, exempt employees must nevertheless be paid their full salary if the shutdown is for less than a full workweek.

Nonetheless, and barring any state law or restrictive company policy to the contrary, exempt employees may be required to use accrued leave or vacation time (in full or partial days) for their absences. Such a move may be unpopular, but an employer can direct exempt employees to take paid time off for the shutdown, pursuant to the employer's bona fide paid leave or vacation policy. On the contrary, if an employee does not earn, or does not have any available paid leave or vacation time, the employee is still entitled to their full guaranteed salary if the employer decides to close due to weather.⁵ Employers must therefore balance the potential personnel issues that may arise if some employees are required to use accrued paid leave or vacation time, where others are not.

If an employer is open for business, on the other hand, an exempt employee who elects to stay home (or, in the case of a remote-work employee, to not work) due to the weather situation is considered absent for personal reasons. There, an employer with a bona fide paid leave or vacation policy may require the employee to use their accrued paid time off to cover the absence.⁶ As long as it is permitted by state law, paid leave or vacation time in this circumstance may be taken in full or partial days.

If an employer does have a leave policy, but the non-working employee does not have a paid leave account balance, the employer has no obligation to pay the employee. The employer can place the employee on unpaid leave for the full day(s) that the employee failed to report to work for personal reasons. Employers should bear in mind that salary deductions for less than a full day's absence are not permitted, even though leave balance deductions are allowed for partial-day absences. As a result, if an exempt employee with no paid leave balance misses half a day, the employer must pay that employee their salary for the entire day, with no partial deduction for the absence. Meanwhile, an employee with a paid leave balance in the same scenario could be required to use half a day of paid time off to cover the absence.

Remote Work. Employers should consider how to legally and practically address situations where employees work from home, whether in the relatively long-term due to COVID-19, or as a short-term solution due to a natural disaster. As noted earlier, non-exempt employees must be compensated for all time spent working. Accordingly, employers must pay non-exempt employees for performing any work remotely, even if the employee did not have express permission to work from home. Employers, moreover, may need to rely on employees to self-report hours worked in such a scenario. To help minimize the risk of wage and hour violations for employees who are working from home, employers should implement, communicate and strictly enforce a time and attendance policy that clearly explains what constitutes compensable time and requires employees to accurately record all time worked. Exempt employees must likewise be paid their regular salary in this situation. Even if an exempt employee spends only a few minutes working remotely, the employee must be paid the usual salary for the day and the workweek. In instances where a partial day is worked, the exempt employee can be directed to use appropriate paid leave time for the balance of the time, as discussed above.

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