Employment issues following a natural disaster
Employers generally take precautions to maintain the safety and security of their operations and their employees, but the resulting aftermath of a disaster can dramatically change the situation.
Over the past couple of years, there have been an abnormally larger number of natural disasters occurring that have resulted in the devastation of entire communities. Right now, California is still undergoing evacuations of areas in the paths of the Camp and Woolsey fires. Not only is the Camp fire now on record as being the most destructive and deadliest fire in California, to date 2018 has been one of the most destructive wildfire seasons on record in the state.
These fires follow on the heels of Hurricanes Maria and Michael, which left devastating effects in Puerto Rico, Florida, Alabama, Georgia, North Carolina, South Carolina and Virginia.
Also in 2018, there was the Kilauea volcano eruption and earthquakes in Hawaii, tornados and flooding in many states, snowstorms in several states, and additional fire disasters in a number of states.
Employers generally take precautionary steps to maintain the safety and security of their operations and their employees, but the resulting aftermath of a disaster leaves many with inadequate or damaged resources to continue operations, reduced or excess staff needed for operations, and numerous questions from employees regarding their current pay situation and employment needs.
Related: California’s wildfire epidemic blamed on bad building decisions
Will I still get paid/?
Some of the typical questions that arise following a disaster deal with employee pay, from exempt and nonexempt employees, if work is suspended or cut short. In addition, employers may see a surge in requests for time off, leaves of absence, or unusual accommodations. Some employees may be displaced or unable to work for an extended time due to injury, illness or family situations resulting from the disaster. Some employers may find that they are unable to continue operations in part or entirely, resulting in employee layoffs or terminations.
Employers themselves may be struggling as to where to start when it comes to seeking information for all the issues that may arise with regard to these situations. The employer’s insurance agent and insurance carriers can provide a wealth of information, support and direction to aid in this regard. With respect to workers’ compensation and employers liability insurance however, coverage is in large part governed by the respective state laws and regulations. In the situation of reduced or discontinuing operations, employees may be eligible for unemployment compensation by the applicable state law. This would depend on the actual circumstances and the terms of the federal disaster declaration.
The provisions of the current Workers Compensation and Employers Liability Policy WC 00 00 00 C require that the insured employer tell the insurer at once if an injury occurs that may be covered by the policy. In addition, the insured must provide for immediate medical and other services required by the state workers’ compensation law, and provide the insurer or its agent with the names and addresses of injured persons, witnesses and other information as required. The insured is also required to cooperate with and assist the insurer as requested in the investigation, settlement or defense of any claim, proceeding or suit; and to do nothing after an injury occurs that would interfere with the insurer’s right to recover from others. Of primary importance a disaster is that the insured may not voluntarily make any payments, assume obligations or incur any expenses, unless the insured bears those costs on its own.
Related: The legal and financial ramifications of uninsured status in workers’ comp claims
WARN Act issues
If the employer does implement a mass layoff or closure, advance notice may be required under the federal Worker Adjustment and Retraining Notification (WARN) Act. Some states, including California, have specific plant-closing statutes modeled after the WARN Act, but most states don’t. However, employers operating in all states should be aware that they might be required to provide notice to the state unemployment agency for certain types of mass layoffs.
Of specific importance to employers affected by the wildfires is the California WARN Act, which expands the requirements of the federal WARN Act. As such, the state requires the employer to provide 60 days’ advance written notice of a mass layoff, relocation or termination at a covered establishment [Cal. Lab. Code 1401(a)].
Related: Wildfire issues and insuring to value
FMLA issues
If employees (or their family members) suffer serious injury or illness, the employee may be entitled to leave under the federal Family and Medical Leave Act (FMLA). There may also be state or local leave laws that apply to certain employees — for example, Miami-Dade County, Florida, has its own family and medical leave ordinance with specific eligibility requirements [Miami-Dade County Code of Ordinance, Part III. Code of Ordinances, § 11A-61. Entitlement to domestic leave].
The state of Georgia has a Kin Care Law [Act 203] applying to employers with 25 or more employees that provide paid sick leave to employees, allowing employees with earned sick leave to use that leave to care for an injured family member, including children, spouses, parents, grandparents or tax-eligible dependents. North Carolina has a Healthy Families & Healthy Workplaces Act [SB 556 (1st edition), NC General Statutes 95.31.1-9)] that allows employees to use earned sick leave to care for an injured family member, including children, spouses, parents, siblings, grandparents, or grandchildren, whether the relationship is biological, foster, adoptive, step, half or in-law. These are just examples, so it’s important to check the specific state and local laws to determine whether there are additional leave laws that would benefit employees following a disaster.
California has several laws that give employees the right to take leave for family and health reasons, and the multiple protected leaves of absence available to employees in that state far exceed those mandated at the federal level. For specific information on California’s leave laws, contact the state Department of Fair Housing and Employment. The Temporary Disability and Paid Family Leave programs are administered by the Employment Development Department.
Related: Insurers collaborate to gather critical data after catastrophes
Special rules for first responders
Some states have laws protecting employees who miss work because of their service as volunteer first responders. For example, Alabama does not allow employers to terminate employees who are members of a volunteer fire department or emergency medical service who are late or absent while responding to an emergency call. This type of leave may be unpaid, and employers may ask for documentation of the need for the leave. [Alabama Code 36-21-160].
The expansive California leave laws apply to volunteer firefighting, reserve peace officers, and emergency rescue personnel. In addition, any California employer with 10 or more employees must provide no fewer than 10 days per calendar year of unpaid leave for an employee responding to an emergency mission of the California Wing of the Civil Air Patrol unless it’s a single emergency. In that case, only three days’ leave is required.
In addition to consulting their insurance agents and insurance carriers, employers impacted by disasters with employment issues can find links to information on unemployment insurance, disaster unemployment assistance, dislocated worker grants, worker claims, wages, and other related topics in the U.S. Department of Labor’s website.
Related: California Carr and Mendocino wildfire insurance claims top $845 million
Karen L. Sorrell, CPCU (ksorrell@alm.com) is an editor with FC&S Online, the authority on insurance coverage interpretation and analysis for the P&C industry. Visit the website for additional information about FC&S Online at www.NationalUnderwriter.com.