By Jeff Nowak, © Franczek Radelet P.C.
Natural disasters like Hurricane Sandy raise a host of issues for employers: how do you pay your employees during suspended operations? Whether and to what extent should health benefits and other benefits be offered?
The aftermath of the hurricane also raises questions about an employer's obligations under laws such as the Family and Medical Leave Act (FMLA), and in particular an employee's right to take FMLA during a natural disaster.
The FMLA does not, in itself, require employers to give employees time off to attend to personal matters arising out of a natural disaster, such as cleaning a flood-damaged basement, salvaging belongings or searching for missing relatives.
However, an employee would qualify for FMLA leave when, as a result of a natural disaster, the employee suffers a physical or mental illness or injury that meets the definition of a "serious health condition" and renders them unable to perform their job, or the employee is required to care for a spouse, child or parent with a serious health condition who is affected by the natural disaster.
Some examples include the following:
• As a result of the natural disaster, an employee's chronic condition (such as stress, anxiety or soaring blood pressure) flares up, rendering them unable to perform their job. Where the medical certification supports the need for leave as a result of the natural disaster, FMLA leave is in play.
• An employee is required to care for a family member with a serious health condition for a reason connected with the natural disaster. Take, for instance, an employee's parent who suffers from diabetes. If the event took out power to the parent's home, the employee may need to help administer the parent's medication, which must be refrigerated. Similarly, the employee may need to assist a family member when his/her medical equipment is not operating because of a power outage.
In addition, employees who are physically or emotionally injured as the result of a natural disaster also may be entitled to FMLA leave. Moreover, their impairments may be significant enough to rise to the level of disability, resulting in potential employer obligations under the Americans the Disabilities Act (ADA). These medical conditions may arise several weeks and months after the natural disaster hits. Thus, employers should be vigilant in watching for signs of an employee who is unusually scarred by a natural disaster.
Take, for example, post-traumatic stress disorder (PTSD), a condition often associated with military servicemembers returning from active duty. PTSD also can arise out of a natural disaster. In this situation, an employer would not only be required to consider its FMLA obligations for such an employee, but its ADA obligations as well. Here, the employer may need to provide FMLA leave if the employee is unable to perform his or her job duties as a result of a serious health condition, and also may be required to provide reasonable accommodations for the employee, such as the option to telecommute or work from home, or provide leave to attend counseling or receive treatment for the medical condition.
Where an employee is requesting leave as a result of the natural disaster, employers should obtain as much information as possible from the employee to determine whether the absence qualifies as protected leave. Where there is doubt, employers should provide the requisite FMLA paperwork and allow the employee to provide the necessary information to support FMLA leave. (A previous FMLA podcast of ours covers how an employer should respond to a request for FMLA leave.)
Also, employers should ensure that medical certification is sufficient to cover the absence at issue. Where more information is required, employers must follow up with an employee to obtain the information necessary to designate the absence as FMLA leave. Moreover, when an employer has reason to doubt the reasons for FMLA leave, it has the right to seek a second opinion to ensure FMLA leave is appropriate.
Calculating FMLA Leave When the Workplace Closes
If an employer shuts down because of damage related to a hurricane or other natural disaster, and an employee was out on FMLA leave at the time the office closed, is the employee charged FMLA leave for these days?
The FMLA regulations (at 29 CFR § 825.200(h)) clearly state how an employer should calculate FMLA leave when it shuts down its operations:
If for some reason the employer's business activity has temporarily ceased and employees generally are not expected to report for work for one or more weeks (e.g., a school closing two weeks for the Christmas/New Year holiday or the summer vacation or an employer closing the plant for retooling or repairs), the days the employer's activities have ceased do not count against the employee's FMLA leave entitlement.
Thus, the regulations indicate that, if an employer's business is closed for a week or more because of the natural disaster, the days that the business is shuttered could not count against an employee's FMLA leave allotment.
Keep in mind: in these situations, employers cannot count the time against the employee's FMLA allotment even if it is obvious the employee would not have been able to perform the duties of the job during the break. (Listen to this podcast for more information on how to calculate FMLA leave during periods in which the employer is closed for business.)
Jeff Nowak is a partner at the law firm Franczek Radelet P.C., and co-chairs the firm's Labor and Employment Practice. He has extensive experience dealing with the Family and Medical Leave Act (FMLA) and the Americans with Disabilities Act (ADA), including counseling clients on compliance with FMLA regulations, conducting FMLA audits and training, and successfully litigating FMLA and ADA lawsuits.
© 2012 Franczek Radelet P.C. All rights reserved. Republished with permission.
Related SHRM Articles:
When Disasters Strike: Pay, Leave and Related Issues, SHRM Online Compensation, updated October 2012
Disaster Recovery: Employers' Responsibilities—Natural Disaster, SHRM Online Benefits, updated October 2012
Related SHRM Resource:
SHRM Online Disaster Prep and Response Resource Page
SHRM Online Benefits page
SHRM Online Compensation Page
SHRM Online Health Care Reform Resource Page