As employers attempt to keep their businesses running and give their employees the time necessary to deal with the devastating impact of Hurricane Michael, employers should not disregard the significant employment laws that apply following a natural disaster or the opportunities provided by the federal government to assist workers to return to employment.
First, if an employer temporarily closes its workplace following a natural disaster, whether the employer must continue to pay employees depends on whether the employees are exempt or nonexempt under the Fair Labor Standards Act (FLSA). While employers must pay nonexempt employees only for hours actually worked, exempt employees may be entitled to their full salaries if their worksites are closed temporarily due to a natural disaster and the exempt employees continue to work in connection with the closure.
Tax laws have multiple provisions that can help employers and their employees after natural disasters, such as granting employees in disaster areas additional time to file tax returns and pay taxes, and allowing employers to provide tax-free disaster relief to their employees if the payments constitute qualified relief payments.
The Worker Adjustment and Retraining Notification (WARN) Act requires employers with 100 or more employees to provide 60 days’ notice in advance of a mass layoff or a plant closing. Following natural disasters, employers that cannot provide 60 days’ notice must be able to demonstrate that the loss of employment was caused directly by the disaster, and they must still provide as much notice as is practicable.
Despite the best efforts of employers to support their employees and resume operations, many workers will find themselves out of work following a natural disaster. In recognition of this, the Department of Labor (DOL) issued a swift response to Hurricane Michael on October 11, 2018, announcing that it was making National Dislocated Worker Grant (DWG) funding available in both Florida and Georgia to assist people who are unable to work as a result of the destruction caused by Hurricane Michael.
Authorized by the Workforce Innovation and Opportunity Act of 2014, Emergency/Disaster DWGs aid local and state recovery efforts in response to national disasters by increasing funding for temporary employment opportunities to assist with cleanup and recovery efforts.
Workers must meet three basic requirements to qualify for Emergency/Disaster DWGs. First, there must be a qualifying event, which is usually satisfied when the area is declared eligible for public assistance by the Federal Emergency Management Agency (FEMA). Second, all applications must be submitted to the state agency designated by the state’s governor to receive DWG funds. Lastly, participants must fall within one of the following categories: (1) individuals who are temporarily or permanently laid off as a consequence of the disaster; (2) other eligible dislocated workers; (3) long-term unemployed workers; or (4) self-employed individuals who become unemployed or significantly underemployed as a result of the emergency or disaster.
Besides making DWGs available, the DOL also took the following actions to help employers and employees cope with the aftermath of Hurricane Michael:
- The Employment and Training Administration (ETA) will provide Disaster DWGs.
- The ETA will also administer Disaster Unemployment Assistance, which provides unemployment benefits to individuals who have become unemployed as a direct result of a major disaster declared by the President of the United States.
- The Employee Benefits Security Administration (EBSA) will coordinate with other federal agencies, such as the U.S. Department of Treasury and Internal Revenue Service (IRS), to release compliance guidance for employee benefit plans for plan participants and their beneficiaries.
- The Office of Federal Contract Compliance Programs (OFCCP) will temporarily suspend select federal contractor requirements, allowing businesses involved in recovery efforts to provide more efficient relief.
- The Office of Labor-Management Standards (OLMS) will temporarily ease reporting and regulatory burdens on labor organizations, labor relations consultants, and employers that have been affected by Hurricane Michael.
Robert O. Sands is a shareholder in the Atlanta office of Ogletree Deakins.
Katie H. Krouse is a 2018 graduate of the Georgia State University College of Law and is currently awaiting admission to the state bar of Georgia.
