Natural Disasters & Employee Benefits: Legal & Moral Considerations
With the recent hits of Hurricanes Harvey, Irma and José as well as the 8.1 magnitude earthquake that hit Mexico and the ongoing wildfire problems in the Western United States, many are left wondering what they’re supposed to do in the face of such tragic, unprecedented damage caused by natural disasters.
This goes for everyone – if you’re a victim, how do you cope, and get back on your feet? If you’re lucky enough to be far away from destruction, how can you help? If you work in politics, what is the plan for disaster relief? However, working in the space that we do, we’d like to weigh in on the employer perspective: what benefits and leave allowances your employees are legally entitled to in the midst of a natural disaster and what employers might want to consider, while not required, in order to alleviate the burden for their employees.
FMLA & ADA
When it comes to FMLA and/or ADA related leaves of absence, there’s essentially no real change in process in the face of a natural disaster, at least in terms of the law. There are, however, a few factors to consider, even if you’ve no plans to make a policy change:
- A bad storm or earthquake may heighten the severity of any pre-existing conditions your employees might have. A spike in FMLA or ADA leave requests is not uncommon in the aftermath of a natural disaster; someone with an existing nervous disorder may be dealing with stress-related conditions, blood pressures may be on the up-tick, people may need time to care for relatives who didn’t fare the storm well, etc.
- It is possible for a natural disaster to spur a new condition or injury, such as backpain from home repair, stress-induced migraines, or anxiety over destroyed property.
- Employees who are members of the National Guard and are called for disaster-related duty are not necessarily protected under USERRA, but certain states do protect such absences.
- Even in face of a natural disaster, the FMLA does not account for absences due to things like tending to flood damage, home repair, or looking for missing relatives after a storm. For these situations, employees would need to take personal or company leave to take care of such matters.
- Absences that are protected by the FMLA that might arise would include the onslaught of an existing condition or a new one brought about by the natural disaster (as mentioned above), as well as the need to care for a spouse, child, or parent who cannot tend to their own medical needs. For example, perhaps a relative is diabetic and they need help managing their medication, which needs to be refrigerated, as they’re now without power.
- If your office is impacted by a natural disaster and you need to shut down business operations, or if employees are not expected to work, FMLA entitlement days should not be counted for any employee during that time.
- If an employee is on FMLA leave at the same time that the office is shut down, you need to treat them (in terms of pay, benefits, etc.) as if they are on non-FMLA leave according to your organizational policies.
- A natural disaster can very well be considered an “extenuating circumstance” that might prohibit an employee from completing the requisite claim and eligibility paperwork by the original deadline. See below.
What Some Employers Are Doing, “Just Because”
As a high-category hurricane or powerful earthquake are no doubt devastating both materially and emotionally, many employers are doing their best to show empathy and support for their employees during such difficult times. A few ways they are doing so are:
- Allow more time for claims.
- For example, we have clients in areas affected by Hurricane Harvey who are allowing employees an additional 30 days to meet any claims requirement – whether STD, FMLA or any other kind. Keep in mind that if people have been evacuated, relocated, and/or are experiencing a power shortage, they should not be expected to meet the same deadline. They may not receive a certification form in the mail because they haven’t been at their home address, and without power and internet they might be unable to complete any such documentation online.
- Consider those in FEMA-designated disaster areas.
- Individuals in these areas may need unique assistance and, depending on the damage, there could be cause for a temporary process change on a case-by-case basis.
- Expand or discount any available medical services.
- We have a clients who, as a benefit, offer telehealth services to their employees. Some organizations, in the aftermath of a natural disaster, allow employees to access this service for doctors’ visits and consultations completely free of charge, regardless of their health insurance plan.
- Remind employees of support services.
- In times like these, employee assistance plans (EAPs) can be essential. Whether it’s providing updates to community situations, arranging access to local services or offering a counselor to talk to, employers are reminding employees how to contact the EAP and in many cases extending access to be 24/7, rather than restricting it to regular business hours.
- Take your employees’ word.
- If an employee requests FMLA leave while you suspect they might be using the time for something like assisting an elderly parent with their flooded home, it might behoove you to simply allow it and take their word for it.
As with all matters relating to employee benefits, there are things that employers legally have to accommodate for, and things that are just nice for them to do. It is important to understand the difference and come to an agreement as to what kind of plan will be put in place, if any. Further, if your organization has not yet been faced with a serious a natural disaster, there’s never a better time than the present to start developing a system should the need ever arise (and we certainly hope it doesn’t).
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