Your HR Guide to Hurricane Milton

As I write this post on Wednesday night, Hurricane Milton is making landfall in Florida as a category three storm. 1.3 million people are without power, and forecasters warn that Milton could generate a storm surge with inundations of 12-13 feet.

Many of you with businesses in Florida will have closures this week. When companies shut down due to weather, employment issues arise. I can’t cover all of them in this post, but below, I’ve tried to outline some of the more prevalent federal issues with links to helpful resources.

The Fair Labor Standards Act requires employers to pay covered, nonexempt employees no less than the federal minimum wage for each hour actually worked and overtime at one and one-half times an employee’s regular rate of pay for all hours worked in excess of 40 in a week. Put another way, the FLSA does not require employers to pay nonexempt employees when the employer cannot provide any work for nonexempt employees to perform, like if the office is closed due to a natural disaster.

But if a nonexempt employee is on call during the hurricane and cannot use that time for themselves, they are considered “engaged to wait,” and the time is hours worked. Conversely, if the employee is relieved of duty for periods long enough to enable them to use the time effectively for themselves, then the time is not working time, and an employer does not have to pay for that time.

The rules are different for exempt employees. If weather forces an office closure for less than a full workweek, an employer must pay an exempt employee’s full salary. But, if an exempt employee stays home while the office remains open, an employer may require the employee to use accrued vacation time for the full day they fail to report to work (assuming they don’t work remotely). If they have no PTO left, the FLSA permits deductions from pay when an exempt employee is absent for one or more full days for personal reasons other than sickness or disability. (Your mileage may vary under state and local law.)

In addition to its FLSA fact sheet, the Department of Labor has an OSHA Flood Preparedness and Recovery resource.

The DOL also administers the Family and Medical Leave Act. The FMLA does not provide leave rights specific to natural disasters. But what about employees who are already on FMLA leave? A brief office closure would be an FMLA day if the employee had otherwise taken the entire week off on FMLA leave. If, however, your employee is using FMLA leave in increments of less than one week, don’t deduct an FMLA day unless the employee was scheduled and expected to work on the day the office is closed. But if the workplace shuts down for one or more weeks, the days the employer’s activities have ceased do not count against the employee’s FMLA leave entitlement.

For more on HR issues related to weather and natural disasters, check out this resource from SHRM.

I hope these resources prove helpful. And, above all, stay safe.