After the devastation from the natural disasters that were the recent Hurricanes Harvey and Irma, business owners should know how to remain in compliance with employment laws during a natural disaster. A major question is how the Family Medical Leave Act (FMLA) applies to a natural disaster like Harvey and Irma.
Employees who want to take leave under FMLA due to a natural disaster
FMLA doesn’t specifically provide protected leave for employees who want to take leave after a natural disaster. Therefore, it is vital that employers understand when and how employees can take leave.
Employers can provide leave from their own employment policies even if the leave isn’t protected under FMLA or state law.
FMLA leave would apply when, as a result of the natural disaster, the employee suffers from mental or physical illness or injury that meets the definition of a serious illness. Injuries or illnesses would include any injury that includes at least 1 day’s stay in a hospital, hospice or residential care facility. These conditions could create partial disability and obligate the employer under the American with Disabilities Act (ADA). These conditions can also arise weeks or months after the natural disaster. One example of this is post-traumatic stress disorder.
If an employee’s chronic health condition flares up as a result of Hurricane Harvey or Irma, and renders them unable to work, then FMLA would also apply.
Employees can also use FMLA time to help family members with serious health conditions during or after the natural disaster has occurred.
Employees who are currently on FMLA leave when a natural disaster strikes
If an employee is already on FMLA leave when the natural disaster strikes, then there are two main factors to determining how FMLA leave applies.
- Whether or not the business remains open.
- how long the business closes if it doesn’t stay open.
If the business remains open during and following a natural disaster, then any employees on FMLA leave continue to use FMLA leave.
However, the rules change if the business closes due to a natural disaster.
If an employer is closed for less than a week during or following a disaster, then employees still continue to use their FMLA leave. That’s because FMLA treats short-term business closures the same as holidays. FMLA regulation provides that “the fact that a holiday may occur within the week taken as FMLA leave has no effect; the week is counted as a week of FMLA leave.”
However, if the business closes for a week or more, then FMLA leave is suspended for employees currently on leave. FMLA regulations state that if a business is closed for more than a week for holidays, such as Christmas or school break, and employees are not expected to report for a week or more, that FMLA leave does not apply to employees already on leave.
What Employers Can Do
Employers should work to prepare before a natural disaster to create policies for absences that will help to protect them and will inform employees of absence policies before disaster strikes. For employers already affected by a natural disaster, they should obtain as much information as possible regarding the FMLA request. Employers should provide employees with all the required FMLA information and the medical certifications and allow employees to provide the documentation required that support their FMLA leave. Employers should ensure that the medical certification does cover the leave issues at hand and when information is missing, should follow up with employees for additional information.
In short, federal employment laws and regulations don't change during disasters. Employees must be paid, and paid properly. Employees also must be permitted to take leave for either their own serious health condition or a family members.
FMLA compliance (along with other requirements, like disability or religious accommodations) can all be included in disaster planning, so an employer isn't caught off guard by these issues. A disaster management team and pre-determined policies can go a long way.
And employers can ensure that legal compliance is included in contingency plans by including HR from the very first stages of planning.
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