Original Publish Date: December 5, 2017
People seek relief at hospitals when suffering from the effects of a forest fire, earthquake, flood, or other natural disaster. When helping others, hospitals have obligations to their employees during these disastrous scenarios and need to plan ahead for these obligations to avoid a disruption in the workplace. Hospitals should consider implementing an inclement weather policy, a communications plan, and a crisis management plan, and consider the following tips when developing an advance crisis management plan to avoid employment-related lawsuits and/or agency action following a natural disaster.
Hospitals should exercise caution when asking employees to assist with preparing for and cleaning up after a natural disaster, such as a forest fire or flood. In addition to their patients, hospitals are responsible for the safety and health of their workers and for providing a safe and healthy workplace, which includes protecting workers from anticipated hazards associated with preparing for and cleaning up after a natural disaster.1 Employees who lack the proper training to perform such work face significant risk and may fail to heed necessary precautions when assessing or cleaning up damage to the hospital from a forest fire, earthquake, flood, or other natural disaster. As an alternative, hospitals should consider contracting with a professional disaster recovery service to minimize risk to employees post-disaster.
In addition, hospitals should review the Occupational Safety and Health Administration’s (OSHA) guidance for handling hazardous conditions before a natural disaster and incorporate that guidance into their crisis management plan. Visit the U.S. Department of Labor’s Occupational Safety and Health Act (OSHA)’s website for additional information on workers’ rights2, employers’ obligations2, and other services required under OSHA4.
Compensating Workers for Work Performed
Exempt and nonexempt employees: When a hospital has to close or reduce the work week or pay period because of a natural disaster, it must pay an entire weekly salary to exempt employees paid on a salary basis if the employees work any portion of the workweek under the Fair Labor Standards Act (FLSA).5 However, a hospital generally is not required under the FLSA to pay hourly, nonexempt employees if they do not report to work and do not perform work. Instead, hourly workers must be paid for the actual time they work. However, employers in certain states and municipalities do need to be aware of recent legislation that requires employers to provide employees advance notice of schedule changes (some of which provide for exceptions for natural disasters.)
Actual work: Hospital employees may be required by necessity to take on different and additional duties and responsibilities to assist with preparations for a natural disaster or with clean up. For example, a security guard who is a non-exempt employee may be tasked with cleaning up debris after an earthquake. Although the security guard may not typically clean up debris, that job duty may relate to security and safety, and in any event the hospital must compensate the security guard, as all non-exempt employees, for all time worked. An employer must compensate an employee for performing any activity that is primarily and necessarily for the employer’s benefit.
Volunteers: After a natural disaster, such as post-hurricane Harvey, some employers had employees volunteer to assist in the community with the recovery process. Some volunteers may have chosen to help the hospital that is also their employer with recovery efforts, such as clearing debris, fixing equipment, and recovering salvageable files. A hospital must exercise caution when deciding whether to allow workers to “volunteer” with such efforts, as it may be required to compensate “volunteers” who perform work that can be construed as compensable time worked (e.g., an activity that is primarily and necessarily for the benefit of the employer).
Requests for Leave
Of course, hospitals will typically receive an influx of requests for time off from employees immediately before and after a natural disaster. Although hospitals are not required to provide employees time off in all circumstances, such as to clean up damage to their personal property, there are certain situations in the aftermath of a disaster for which an employee may qualify for time off under the Family Medical Leave Act (FMLA), or other related state statutes. For example, an employee who suffers from chronic anxiety may have his condition flare up when an earthquake damages his home. FMLA leave may apply in such a situation if the medical certification supports the need for leave.
In addition, hospitals may also be required to provide leave as an accommodation pursuant to the Americans with Disabilities Act (“ADA”).6
There are a number of employment-related issues hospitals must consider when creating an inclement weather policy or crisis management plan. Hospitals and health care administrators should consult with legal counsel when creating these policies and developing a plan to minimize employment-related risks.
1 See 29 U.S.C. § 651(b).
2 OSHA 3021-11R 2016.
4 OSHA 3302-11R 2016.
5 See 29 CFR § 541.602(a).
6 See 42 USC § 12111(9); https://www.eeoc.gov/eeoc/publications/ada-leave.cfm#_ednref6.
About the author: Henry Thomas is a labor & employment attorney with Polsinelli who counsels health care organizations, companies, and professionals. Henry helps employers navigate the ever-changing regulatory environment which, if not properly addressed, can impact productivity and profitability. Henry provides employment counsel on Title VII, ADA, FMLA, NLRA, and FLSA, and defends employers in litigation involving wage and hour issues, discrimination, retaliation, wrongful termination, and labor issues. Contact Henry Thomas at firstname.lastname@example.org or call 816-360-4118. www.polsinelli.com