Hurricane Harvey: What Employers Need to Know, and How HR Can Help

Hurricane Harvey: What Employers Need to Know, and How HR Can Help

In one of the worst natural disasters in US history, Hurricane Harvey has dumped more than 11 trillion gallons of rain on the Houston metro area and other parts of southeast Texas, leading to catastrophic flooding throughout the region. While the city of Houston was not ordered to evacuate, most organizations in the city, including major employers like NASA’s Johnson Space Center, ConocoPhillips, and Waste Management, Inc., were closed on Monday and instructed employees to stay home, according to the Wall Street Journal. Some encouraged employees who were safe to work remotely from home. Many local businesses and national firms with a presence in the region, including major retail chains like Target and Walmart have closed their stores in the area and are participating in relief efforts by donating money or emergency supplies.

For organizations whose employees are affected by the hurricane, the first priority in the coming days and weeks is to communicate with employees about the status of their workplaces and projects, as well as benefits and resources available to them, as Amanda Eisenberg highlights at Employee Benefit News:

“The most important thing to communicate is what the employers are doing for the employees and the community,” says LuAnn Heinen, vice president of the National Business Group on Health. “First of all, that help is on the way.”

Employers also are going to have to be flexible, she says. Employees need to know if they are expected to come into the workplace, and if they can’t, whether they can work remotely. Schools are likely to be closed, and relatives might have been relocated from nursing homes or hospitals to shelters. Employees might need access to childcare or eldercare, and companies should be in constant communication to relay those benefits, Heinen explains.

Another vital resource for workers in a time of crisis is the employee assistance program. Not only can employees use an EAP during the storm and in its aftermath, but EAP providers also can supply resources that teach employers how to communicate in a supportive manner, says Rachel Schacht, senior analyst at the National Business Group on Health.

In situations where businesses are forced to shut down for days or weeks at a time, or where employees are unable to get to work because of flooding or other emergency conditions, employers may be unsure of their obligations regarding pay and leave. As Duane Morris partner Jonathan A. Segal explains at SHRM, these obligations can vary depending on whether employees are exempt or non-exempt and how long they are unable to work:

  1. As a result of the FLSA’s salary basis requirement, if as a result of the hurricane, you close for less than a full work week, you must pay an exempt employee for days that you are closed. However, you generally can require that an exempt employee use PTO during a day in which you close.
  2. If you remain open and an exempt employee does not come to work, you do not have to pay the employee for the day; this can be treated as an absence for personal reasons, provided it is a full day. If an exempt employee arrives late or leaves early, he or she must be paid for the full day, but you generally can require that he or she use PTO, if available, to cover the non-working time. You also must pay him or her if he or she does any work from home.
  3. There is no legal obligation under the FLSA to pay non-exempt employees who do not work because you close due to the hurricane; however, there is an exception for non-exempt employees who are paid under the fluctuating work week. Under the FLSA, they must be paid if you close due to the hurricane for less than full work week and they do any work in the work week, whether it be few or many.

When it comes to paid and unpaid leave, Franczek Radelet partner Jeff Nowak adds at FMLA Insights, the Family and Medical Leave Act “does not, in itself, require employers to give employees time off to attend to personal matters arising out of a natural disaster”:

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 might include the following: 1) 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; or 2) an employee is required to care for a family member with a serious health condition for a reason connected with the natural disaster.

Employers should also be cautious about asking employees to volunteer their time assisting the organization in getting back on its feet after an emergency, Seyfarth Shaw attorneys Kevin Fritz and Esteban Shardonofsky write at JD Supra:

Exempt employees who volunteer to help will not be entitled to any additional compensation. But remember that too much time spent on manual tasks or other tasks unrelated to their regular job duties could invalidate their exempt status and allow them to claim overtime compensation. Conversely, non-exempt employees must be paid for all time worked, even if they offer to work and help make repairs for “free,” with one exception: Employers may accept free work from employees of government or non-profit agencies who volunteer out of public-spiritedness to perform work that is not at all similar to their regular duties.

Of course, what organizations are legally obligated to do and what they should do are not always identical. For example, as Duane Morris’s Segal points out, employers who pay exempt employees but not non-exempt employees for a workday on which the business is closed may be on solid legal ground, but this could still be a bad idea from an employee relations perspective.

A disaster like Hurricane Harvey is an opportunity for HR to show its human side, which is why Laurie Ruettimann hopes HR professionals will do everything they can to help affected employees cope with the aftermath of the disaster, beginning with ensuring that employees are paid for as long as the organization can possibly pay them:

Most Americans don’t earn enough to cover a $500 home repair, let alone a flood that wipes out their entire existence. And, yet, the individuals who have the least give are giving the most. If you work for a major corporation, give everything you can and pay people for as long as you can. Especially those retail and restaurant workers. Continue your direct deposits as if nothing has happened. When the water recedes, write checks and hand out cash to employees without bank accounts. Can’t afford to pay people who aren’t working? Ask executives to forgo bonuses and pay people to stay home and clean up their lives. Don’t demand anything in return. It’s the kind of investment that pays dividends down the road.

Disasters can have a particularly strong impact on families with children. Coming just as the new school year was set to begin, Harvey has led to school closures in over 100 districts throughout southeast Texas, Hayley Glatter observes at the Atlantic, and many will suffer lasting damage even if they are able to reopen quickly. These closures are affecting thousands of students, especially those who rely on school meals for adequate nutrition, and many of these children will suffer anxiety, depression, and other mental health issues resulting from the trauma of the disaster. Employers in the affected area should also be cognizant of the unique challenges the parents in their workforce are facing, and consider ways to ease their burden through flexible work options or other solutions.

Finally, for members of the CEB (now Gartner) ERG Leader LinkedIn Group, our Diversity and Inclusion research team has posted some ideas for how Employee Resource Groups can support disaster relief for their offices located in Louisiana and Texas.