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Employment law and disasters, natural and otherwise

In addition to myriad social, emotional, security and economic issues, the Boston Marathon bombings raised employment law implications for affected businesses and employees.

The tragic bombings forced businesses and even the City of Boston itself to close. The aftermath of the blasts also prevented employees who wanted to work from getting to their places of business.

The effect was similar to the disruption often caused by major storms or other natural disasters.

What are employers’ obligations in such circumstances? Here are a few of the employment law issues that may arise during or after a disaster.

Wages

Whether employers have a legal obligation to pay wages depends on whether the employees involved are exempt under the Fair Labor Standards Act. Hourly, or nonexempt employees, must be paid only for actual time worked. Therefore, if hourly employees were unable to work either because their employer was closed or they could not get to work, they are not entitled to payment.

Of course, employers could permit or require employees to utilize accrued paid time off (such as sick or vacation time) in order to be paid, or simply pay hourly employees voluntarily in those circumstances.

The law regarding exempt employees is different. Exempt employees, such as administrators and managers, are paid on a salaried basis under the FLSA. Under the law, an employee must be paid the full salary for any week in which he performs any work at all. If an employer closes the business for any reason – such as weather, the Marathon bombing, a power outage or the like – it must pay exempt employees their full salary for the week in order to maintain their exempt status.

However, the employer may require exempt employees to use accrued paid time off for any such closures, so long as the employee has sufficient accrued leave so as not to result in a negative leave balance. If a negative balance would occur, the employee must still be paid the full regular salary.

But if an exempt employee cannot get to work or chooses not to go to work due to weather, transportation difficulties or other reasons, such as an order to “shelter in place,” and the employer is open, the employer may dock the employee for each full day (but not for a partial day) of absence.

Likewise, the employer may require such employees to use accrued paid time off, if available, in order to receive pay for the day.

Family and Medical Leave Act

The FMLA grants eligible employees leave for their own serious health condition or the serious health condition of a child, spouse or parent that may arise as a result of a disaster.

Americans With Disabilities Act

If there is a disruption caused by a disaster, employees with disabilities may in certain circumstances be entitled to a reasonable accommodation by the employer so long as it does not constitute an undue hardship on the employer’s business.

Each case is determined on a fact-specific basis. Accommodations could include, for example, working at home or another location due to the nature of the disruption.

National Labor Relations Act

Employees who refuse to work in what they consider an unsafe workplace may be protected under Section 7 of the National Labor Relations Act, 29. U.S.C. §157, which protects “concerted activity” by employees.

In addition, Section 502 of the Labor Management Relations Act, 29 U.S.C. §143, protects employees from discharge for refusing in good faith to work in “abnormally dangerous conditions.”

Occupational Safety and Health Administration

Employees have the right to refuse to perform a job if they believe in good faith that they are exposed to an imminent danger. “Good faith” means that even if an imminent danger is not found to exist, the worker had reasonable grounds to believe that it did exist. In such circumstances, there must not be sufficient time to wait for an OSHA inspector to arrive.

Employees cannot be terminated for job refusals in those circumstances. Employers also have an obligation under OSHA to maintain safe and healthy workplace conditions.

Employers and employees may face other disaster-related issues as well, including benefit coverage, unemployment rights, workers’ compensation for job-related injuries, and employment record-keeping and record-destruction issues, to name a few.

Natural and other disasters will, unfortunately, recur. Employers who develop disaster plans should give due consideration to the employment-related issues that are likely to arise.

Joseph W. Ambash is managing partner of the Boston office of the national labor and employment law firm Fisher & Phillips LLP.

About Joseph W. Ambash