Managing employees in natural disasters, other unexpected events

Flooding and wildfire evacuations have become an all-too-common concern in California. Not only do employers and employees have personal concerns, but employers must also be mindful that obligations pursuant to state employment laws and other considerations do not stop in times of disaster. Safety and security, wage and hour laws and leave of absence have employers wondering what happens next.

Summarized in this article are the key employment issues that may arise in disaster-affected areas and potential future considerations for employers.

Calculating wages and hours

How is payroll calculated for exempt and nonexempt employees should the office need to close unexpectedly in the middle of a workday or for longer periods? What happens if payroll processing is delayed?

Exempt employees must be paid a full weekly salary for any week in which any work is performed. In addition, payroll deductions are not permissible should the office remain closed because of a continued threat that makes work unavailable to exempt employees who are ready, willing and able to work. If the employee should require an additional personal day off once the office reopens, employers may deduct from the employee’s paid time off, vacation or paid sick leave banks. Should the employee not have any available PTO, vacation or paid sick leave, the employer can make deductions from an exempt employee’s salary for absences of a full day or longer for personal reasons.

Rules for nonexempt employees in the event of emergencies are different. If an employee is sent home before the end of the scheduled shift due to the reasons listed below, employers are only required to pay employees for the actual hours they worked prior to being sent home:

  • When operations cannot begin due to threats to person or property or when recommended by civil authority;
  • When public utilities fail, such as water, gas, electricity or sewer; or
  • When work is interrupted by an act of God or other causes not within the employer’s control.

If the shutdown of business is at the practice owner’s discretion (not for reasons listed above), “reporting time pay” may be owed. This means, an employee who reports for work as scheduled or at the employer’s request, but is not put to work or is given less than half of the hours the employee was scheduled for or usually worked, may be owed reporting time pay. California law requires the employer pay the employee for at least half of the hours the employee was scheduled to work or usually worked. Reporting pay may never be less than two hours’ pay and never more than four hours’ pay at the employee's regular rate of pay, which can never be less than the minimum wage.

Pay may be owed to employees who are required to be “on call” in the event that the practice can reopen. If the employees were required to stay at home on standby status, that time may qualify as hours worked depending on how much the employer restricts their ability to have free time. In these types of situations, employers are free to choose to provide some paid time in emergency situations and also have the ability to allow employees to use vacation or other accrued personal time.

The key is consistent treatment of all employees.

In the event that delays in payroll processing may occur, employers should know that they are obligated to pay employees at least twice during each calendar month. California Labor Code Section 204 stipulates that wages earned between the first and 15th days, inclusive, of any calendar month must be paid no later than the 26th day of the month during which the labor was performed, and wages earned between the 16th and last day of the month must be paid by the 10th day of the following month. Other payroll periods such as weekly, biweekly or semimonthly (twice per month) when the earning period is something other than between the first and 15th, and the 16th and last day of the month, must be paid within seven calendar days of the end of the payroll period within which the wages were earned. If overtime should occur, it must be paid no later than the payday for the next regular payroll period.

If an employer should anticipate a delay, employees should be notified in writing, when practicable, of the date they can expect payment. Open and honest communication with employees about office hours, wages and schedules is a highly recommended best practice. 

Applying leave of absence policies

All employers must provide unpaid leaves of absence for employees who are required to perform emergency duty, and employees should not be disciplined for taking time off to perform emergency duty as a volunteer firefighter, peace officer or emergency rescue personnel. Employees are encouraged to be mindful of the impact to the practice when taking such leave, however, as the length of absent time and the total days per year are not limited by law. In addition, employers of 50 or more employees may be required to provide up to 14 days’ unpaid leave time per calendar year to engage in required fire, law enforcement or emergency rescue training.

Practices should review their leaves of absence policies and ensure they outline notification and eligibility requirements for taking such leave as described above.

In the event employees must attend to health issues, employees may be entitled to take time off in accordance with California mandatory paid sick leave to care for themselves or a family member, as defined by law or local ordinance.

Employees of larger practices who employ 50 or more employees may be eligible for a maximum of 12 weeks of unpaid leave in a 12-month period for medical leave to care for themselves or family members with serious health conditions under the Family Medical Leave Act (FMLA) or California Family Rights Act.

Employees who suffer a physical or mental injury because of a natural disaster may be protected by the federal Americans with Disabilities Act or the state Fair Employment and Housing Act. Employers may be obligated to provide protections under these laws. More information on this topic can be found in the resource, Dentists Should Be Prepared When an Employee Seeks a Disability Accommodation, available in the Practice Support section of CDA’s website.

If an employee is not entitled to any legal leave of absence as defined above, it may be possible to accommodate an employee request for an extended paid or unpaid personal leave of absence in accordance with practice policies. As a best practice, this type of leave agreement would be defined in writing.

Heeding warnings, being prepared

Employers have an obligation to keep workers safe and to have the systems in place to do so. All employers are required to have safety plans and to communicate them to employees. Additionally, employees should be trained in emergency response and the plans should designate the actions that must be taken to protect themselves from fire and other emergencies. As part of this, current contact information for employees should be maintained and a person designated to make the final decision on whether to close and communicate office closures to employees. Safety plans are available as part of CDA Practice Support’s Regulatory Compliance Manual.

Fires and floods and the paths they take can change quickly, making it especially important that forecasts and warnings are closely watched and heeded. Employers should not wait too long to close up practices and should consider if alternative workspaces are available and whether certain employees can work from home.

To access the member resources cited in this article, visit cda.org/practicesupport or cda.org/resources.

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