Ian has reminded us again that disasters happen. Employers need to be ready. So do employees and households.
In disaster situations (whether hurricanes, snow storms or an unexpected pandemic), employers sometimes have to consider the legal pay implications when businesses are closed and employees cannot come to work. Empathic employers who are able will continue to pay employees even when they cannot work due to a disaster.
Let’s address the legal obligations.
Whether the law requires that an employee be compensated even when a business is closed depends on the classification of the employee.
According to the Department of Labor, the employer is not obligated to pay a non-exempt (hourly) employee for hours not worked even if the employee was sent home or cannot work due to bad weather. This is the law — not necessarily what employers should do.
If an employee is properly classified as exempt from overtime, the answer on whether the employer must compensate the employee when the employee cannot work due to an office closure or disaster is — “it depends.”
According to Stuart Silverman, owner of the Law Offices of Stuart M. Silverman, PA, of Boca Raton, Fla.,the law changes for exempt employees because they are compensated based on a salary for a workweek, not hours. “Since the rule is that exempt employees must be paid for the entire week for any week that they work at all, or the employer risks losing the exemption, then if the workplace is closed for less than a week, the worker must be paid for the entire week,” Silverman said.
Silverman said this is true “even if the employer does not have a bona fide benefits plan; the employee has no accrued benefits in the leave bank; the employee has limited accrued leave benefits and reducing that accrued leave will result in a negative balance; or the employee already has a negative balance in the accrued leave bank.”
However, if the workplace is closed for an entire week, the exempt employee need not legally be paid.
With the new technologies of virtual work, some employers can resolve the issue of office closures with telework options.
Unfortunately, some employees may be in environments where they don’t have access to internet or power due to outages in disaster locations. Employers should evaluate each situation, recognizing that — yes — some will take advantage, but most employees who are unable to work due to a disaster are truly unable to work.
The inability to work may go beyond the lack of power or internet. Some employees may be experiencing flooding. Others a tree in their roof. Employers should find ways to make the lives of their employees better when a disaster occurs.
A hurricane such as Ian is not the only concern for employers. Employers should plan in advance, not just when the disaster is approaching or already here. The Virginia Department of Emergency Management offers extensive resources for emergency preparedness, including resources for individuals, families and businesses at www.vaemergency.gov/prepare.