Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
This hurricane season has been chaos for those along the East Coast. Less than a month after Hurricane Florence rampaged through the Carolinas, Hurricane Michael—a category 4 storm—has made landfall in Florida, and is headed toward Alabama and Georgia.1 All states in the direct path of Michael have declared a state of emergency in response to the hurricane and recommend their citizens prepare for the worst. After the hurricane strikes, employers in Alabama, Florida, and Georgia will be faced with some important considerations.
Safety and security are, of course, the foremost concerns for everyone in Michael’s trajectory. The Federal Emergency Management Agency (FEMA), and the affected states, have issued general storm and disaster preparedness information. That information is linked below and includes:
- FEMA hurricane preparation guidance
- The FEMA Mobile App
- Florida’s evacuation orders and planning recommendations
- Georgia Emergency Management Agency’s safety advice
- Alabama’s Hurricane Michael tracking
After they have given the requisite care to the safety of employees and themselves, employers should look to address some of the typical questions that arise after a hurricane. For example, there may be questions about how to pay employees (exempt and nonexempt) if a work day is cut short or if all work is suspended for a few days. Depending on the severity of the damage, some employers may want to voluntarily continue paying employees their wages (full or partial), which requires forethought and potentially tax planning. None of the states in the path of Hurricane Michael, however, have any particular statutes or regulations addressing these issues in the context of a natural disaster. Florida, for example, follows standards set by the Fair Labor Standards Act for the payment of wages, such that employers must pay nonexempt employees only for hours actually worked.
After the storm, employers may see a surge in employee requests for time off, leaves of absence, or reasonable accommodations. For example, employees that have suffered a serious injury or illness—or who have a family member who did—may be entitled to leave under the federal Family and Medical Leave Act (FMLA). State or local leave laws additionally may apply to certain employees. Dade County, Florida, for example, has its own family and medical leave ordinance.2
Georgia has a rather expansive “kin care” law that might come in to play after the hurricane if an employee has an injured family member.3 The law allows employees who earn sick leave from their employer to use that leave to care for a family member, including children, spouses, parents, grandparents, or dependents. Generally, in Georgia, larger employers must allow employees who work at least 30 hours per week to take up to five days of their paid sick leave per year to care for the needs of their immediate family members.
Employers should also be aware that some states protect employees who miss work because of their service as volunteer first responders. Indeed, in Alabama, employers may not terminate employees who are members of a volunteer fire department or emergency medical service who are late or absent while responding to an emergency call.4 This type of leave may be unpaid, and employers may ask for documentation of the need for leave.
In addition to addressing these requests from existing employees, employers might also face questions related to employees who are displaced from their positions due to Hurricane Michael. Employees may become eligible for unemployment compensation, depending on their circumstances, applicable state law, and the terms of any federal disaster declaration.
Hurricanes can cause significant damage to an employer’s facilities. While we hope Hurricane Michael does not necessitate this outcome, employers that close a facility or implement a mass layoff must evaluate whether notice will be required under the federal Worker Adjustment and Retraining Notification Act (WARN). While some states have similar plant closing statutes modelled after WARN, Alabama, Florida, and Georgia are not among them. Employers operating in Alabama and Georgia, however, should be mindful that notice may be required to the state unemployment agency if certain types of mass separations occur.
Employers preparing to tackle Hurricane Michael and these associated issues are encouraged to consult the resources mentioned above and may also wish to review hurricane recovery information provided by the Department of Labor (DOL). The DOL offers basic information about Disaster Unemployment Assistance, Unemployment Insurance, National Dislocated Worker Grants, and safety and health issues.
We hope that our friends and clients stay safe during the storm, and we are prepared to help as best we can throughout the recovery from Hurricane Michael.
1 See Stephen Dellinger, Hurricane Florence Approaches – What Can Employers Anticipate?, Littler Insight (Sept. 11, 2018).
2 Dade County, Fla., Ordinance §§ 11A-29 et seq. In Dade County, private employers with 50 or more employees must provide family and medical leave to eligible employees. Permissible reasons for, and the length of, leave under the ordinance are the same as those under the FMLA. Unlike the FMLA, the group of family members for whom an employee may take a leave of absence includes grandparents.
3 Ga. Code Ann. § 34-1-10; see Shella Neba and Blaze Douglas, Georgia Enacts Kin Care Law, Littler ASAP (May 15, 2017).
4 Ala. Code § 36-21-160.