What Workers Need to Know About Hurricanes

A hurricane won’t blow away your legal rights as an employee. Below are answers to some questions about how a hurricane might affect your job rights: Must my employer protect me from dangerous working conditions during a hurricane? Yes, if you work for a private-sector employer or a federal agency. Under the Occupational Safety and Health Act (OSHA), most private-sector employers and federal agencies are required to provide a safe and healthy workplace for workers. This duty includes protecting workers from known dangers associated with response and recovery operations that workers are likely to perform after a hurricane. For examples of such protective measures, see Keeping Workers Safe during Disaster Cleanup and Recovery, a fact sheet posted by the Occupational Safety and Health Administration. For information about filing an OSHA complaint, visit the OSHA website.  State, county, and city workers in Florida are not covered by OSHA. However, if they are covered under a collective bargaining agreement, they may have similar safety and health protections under the contract. Can my employer fire me if I refuse to work during a hurricane? If the employer stays open during a hurricane, you risk getting fired if you miss work without permission. Examples of employers that conduct business during hurricanes are hospitals, utility companies, and emergency services. However, firing you for not showing up for work during a hurricane may be unlawful in some situations. For example:

• You may have a right under OSHA to refuse to work if you genuinely believe a working condition presents a risk of death or serious physical harm; you asked the employer to eliminate the danger but it failed to do so; and there is not enough time to pursue an OSHA complaint.
• If you cannot perform the required work safely without an accommodation of a disability and the employer denies your request for the accommodation, the employer’s refusal to accommodate the disability and firing you may violate the Americans with Disabilities Act.
• If you or your spouse or minor child suffer a serious health condition during the hurricane and you notify the employer as soon as possible, your absence may be protected under the Family and Medical Leave Act (‘FMLA’).
• If you suffer an on-the-job injury during a hurricane, you may seek workers’ compensation benefits. For information on workers’ compensation benefits, visit MyFloridaCFO. If the employer fires you because you filed or attempted to file a workers’ compensation claim, the discharge may be unlawful retaliation under Florida’s worker’s compensation statute.
• If you are activated to perform state or federal National Guard duty or FEMA reserve service in connection with a hurricane, your absence may be protected under the Uniformed Services Employment and Reemployment Rights Act (‘USERRA’).
• If the employer treated other employees who refused to work more leniently than you, the employer’s harsher treatment of you might be unlawful discrimination if, for instance, the other employees were of a different race, gender, national origin, religion, or age than you.
• If a collective bargaining agreement covers you, you may have recourse by filing a grievance regarding your contractual protection from unjust discharge.

Must the employer pay me if it closes during the hurricane? It depends. If you are an hourly-paid employee, you are not entitled under federal law to pay for hours you don’t work due to a hurricane or other natural disaster. Nor does Florida law require an employer to pay an hourly-paid employee for unworked time. The picture changes if the employee is exempt from the minimum wage and overtime requirements applicable to hourly-paid employees. Such an “exempt” employee is entitled to full salary for the workweek the employer closes if the exempt employee worked any part of the workweek. However, if the exempt employee has accrued paid time off, the employer may require the employee to use accrued paid time off. Suppose the employer is closed for an entire work week due to a hurricane or other natural disaster. In that case, the employer is not required to pay the exempt employee’s salary for such a workweek but can require the employee to use accrued paid time off. Can I receive unemployment benefits for work missed due to a hurricane? You may qualify for disaster unemployment assistance if your employment or self-employment has been interrupted or lost due to a hurricane or other disaster that the President declares a “major disaster.”  Such assistance may be provided if due to a major disaster, a worker or self-employed person:

• no longer has a place to work;
• cannot reach the place of work;
• cannot work due to damage to the place of work; or
• cannot work due to an injury caused by the disaster.

Visit Florida Commerce for further information on disaster unemployment assistance. What happens if the employer closes while I’m out on family and medical leave? Under the FMLA, an eligible employee of a covered employer may take up to 12 workweeks of leave in a 12-month period for the birth of a child (or placement of a child with the employee for adoption or foster care); the employee’s own or a spouse’s, minor child’s, or parent’s serious health condition; or some circumstances related to a family member’s military deployment. The FMLA allows up to 26 workweeks of leave in a single 12-month period to care for a family member who is a current service member or recent veteran with a serious injury or illness. If the employer temporarily stops its business activity for one week or longer due to a hurricane or another reason, and employees generally are not expected to report for work during that time, the days the employer’s activities have ceased do not count against the employee’s FMLA leave entitlement.