United States: The Hurricane Katrina Disaster FAQs

Included in this article:

Military Leave And Emergency Workers
Family And Medical Leave
Unemployment Compensation
OSHA
Wage-Hour
Employee Benefits
National Labor Relations Act
Workers' Compensation
Immigration

MILITARY LEAVE AND EMERGENCY WORKERS

1. A number of our employees have been called upon to serve as relief workers to help with the Katrina devastation. Do laws such as USERRA protect them as they would national guard members, reservists and other members of the uniformed services?

Probably, yes. Congress created the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) in an effort to bring the laws regarding military leave up to date with the realities of military service and modern workplace law. Although USERRA initially received little attention, it has gained new prominence for legislators and employers alike since the terrorist attacks on 9/11, and likely will again in the wake of Hurricane Katrina.

2. What does USERRA cover?

USERRA is a broad pro-employee statute, significantly restricting the treatment of employees who perform services protected by the statute. Although USERRA is similar to other laws (such as the Family Medical Leave Act and COBRA) in some respects, it is unique in many others, including the creation of a presumption in favor of the complainant. It provides three major categories of employer obligations:

Louisiana, Mississippi, and Alabama all have State laws patterned after USERRA that contain specific requirements for military personnel. For more specific information on the interplay between these laws and USERRA, contact legal counsel.

3. What does this have to do with Hurricane Katrina?

In addition to military personnel called up to serve in the federal Katrina response, the Bioterrorism Preparedness and Response Act extended USERRA's protections to certain federal emergency workers dispatched to assist with national disasters, including those employees performing as intermittent disaster response appointees upon activation of the National Disaster Medical System (NDMS), even if they are not otherwise members of the uniformed services. NDMS programs include: 1) DMAT (Disaster Medical Assistance Team); 2) DMORT (Disaster Mortuary Operational Response Team); 3) VMAT (Veterinary Medical Assistance Team); 4) NPRT (National Pharmacy Response Team); and, 5) NNRT (National Nurse Response Team). Members of the commissioned corps of the Public Health Service (PHS) also qualify for USERRA protection, as would any other category of persons designated by the President as "uniformed services" at times of national emergency.

4. How do I know if my employees are covered?

To establish USERRA eligibility, an employee must meet the following five conditions:

To the extent that employees are unable to meet these criteria, or to the extent that they volunteer to serve with the relief effort despite the fact that they were not activated under any of the covered federal programs described above, they would not qualify for USERRA protection. Nonetheless, military employees may qualify for protection under more broad State laws patterned after USERRA, or under State laws protecting emergency relief workers.

5. One of our employees is a relief worker hired by the State (not NDMS) to help with the Katrina devastation. Does State law impose obligations on us with regard to this employee?

It depends. If a State or local government provides protection to individuals it calls upon to provide disaster relief services, then you will be bound to follow those laws. You will find a general description of these laws below.

Louisiana

State law has detailed requirements for private and public employees called to duty as "first responders" pursuant to an operations plan by the department of homeland security. Such employees must be placed on temporary leave pursuant to the employer's policy regarding such employees leaves of absence, and must be reinstated to their prior position upon return to work (subject to further restrictions not discussed here). Such leave is designated as unpaid, but employees may use vacation, sick leave, and accrued compensatory leave during this term of service.

Louisiana also provides emergency services/disaster leave for public employees working for State governments in designated disasters or for the American Red Cross in disasters designated as Level III. A public employee certified by the American Red Cross as a disaster services volunteer may be granted paid leave for a period not to exceed 15 work days in any 12-month period to participate in relief efforts of the American Red Cross. Employees must notify the public employer of their intention to leave as soon as is practicable. The employee must provide the public employer with specific information such as: proof of certification as a Trained Disaster Volunteer; nature and location of the disaster the employee is assigned to; anticipated duration of leave; type of service employee will provide to Red Cross; identity and title of Red Cross official supervising employee and the unit the employee will be in; written request for the employee's services from a Red Cross official. Employees must be reinstated to their previous positions of public employment within 24 hours of providing notice to the employer of their intent to return.

Mississippi

State law provides emergency services/disaster leave for public employees working for local or State governments in designated disasters or for the American Red Cross in disasters designated as Level II. Public employees may be granted discretionary administrative leave with pay for a time not to exceed 20 days in any 12-month period.

Alabama

State law provides for emergency services leave in disasters designated by the American Red Cross as Level IV or higher for public employees. Upon the request of the American Red Cross, State employees certified as Disaster Services Volunteers by the American Red Cross may be granted leave with pay for a time not to exceed 15 days in any 12-month period. These public employees must be compensated at the regular rate of pay while working for the Red Cross.

6. One of our employees advised us that he wanted to volunteer with the Katrina relief effort and has been absent from work. What are our obligations with regard to this employee?

If the employee does not qualify for federal USERRA protection, or is not designated for protection under State or local law, then you are not obligated to provide such protection. Nevertheless, the employee may be eligible for FMLA leave or leave under one of your company's other policies.

7. How long after they finish working for NDMS do employees have to return to us?

If an employee works for NDMS for a period of 30 consecutive days, the employee must return to work on the first full regularly scheduled work day occurring after the employee has had safe transportation home plus an eight hour rest period. If it is impossible or unreasonable for the employee to return to work within this time frame through no fault of the employee, then the employee must return back to work as soons as possible following the eight-hour rest period.

8. Are employees who participate in NDMS eligible for health care coverage and continuation?

Yes. NDMS employees have the same USERRA right to elect continued health care coverage as military personnel do. NDMS employees also have the right to immediately reinstate health insurance coverage upon their return to work.

FAMILY AND MEDICAL LEAVE

1. Does family and medical leave apply to this situation?

Employees requesting leave could conceivably be protected by the Family and Medical Leave Act (FMLA) to the extent they otherwise meet FMLA eligibility requirements. Even in the absence of State or federal protection, an employer's internal policies may extend protection to such individuals. Of course, there is nothing to prevent an employer from voluntarily extending such leave, even in the absence of any legal obligation.

As with many of our employment laws, the worst thing an employer (or as is often the case, an untrained supervisor) can do at times like this is to reject immediately an unorthodox leave request before the facts are in. As you can see, the federal government, along with many State legislatures, have extended broad reemployment protections to many who are now assisting with the relief effort, regardless of whether they are members of the uniformed services, and regardless of whether they are doing so on a voluntary basis. When in doubt, the wisest approach is to work with counsel to ensure legal compliance, thereby minimizing exposure to costly litigation.

2. One of my employees was already on FMLA leave at the time we had to suspend operations. How should we handle the leave now?

Although certain States may impose greater obligations than federal law, neither Louisiana nor Mississippi have such laws, which means that FMLA will govern leave obligations. The law makes clear that employees on qualified FMLA leave are entitled to no greater rights, benefits or protections than they had before taking leave. While FMLA regulations provide little guidance with respect to your obligations in the context of a natural disaster, they do make clear that if an employee is legitimately laid off during the course of FMLA leave, then your responsibility to continue leave, maintain health benefits, or even restore the employee may cease at that time, absent any conflicting obligations pursuant to a collective bargaining agreement, employee handbook, or otherwise. By analogy, the same should hold true for an employee whose work assignment has been suspended due to any other intervening event, including a natural disaster such as Hurricane Katrina.

Nonetheless, it is the employer's burden to show that the employee would have been laid off (or terminated for lack of work) during the FMLA leave period, and therefore not entitled to job restoration. If the employees establish that they would instead have been reinstated, reassigned, transferred, or permitted to telecommute had they not taken FMLA leave, then their benefits continue until exhausted.

The best approach is to treat the employee as you would any other employee in his or her job classification. If a similarly situated co-worker is permitted to telecommute or transfer to another location, then benefits for the FMLA-qualifying employee should be continued until the 12-week leave entitlement has been exhausted, at which point your existing leave policies would dictate any continuing obligations. In certain situations, as evaluated on a case-by-case basis, additional unpaid leave may also be available to disabled employees as a form of reasonable accommodation under the Americans with Disabilities Act.

UNEMPLOYMENT COMPENSATION

1. My employees are not working because of the hurricane. Are they eligible for unemployment compensation?

Yes, as long as your employees have earned the appropriate level of wages during the "base period" of time (which varies by State). Unemployment compensation is paid when employees are out of work for reasons other than their own misconduct.

Alabama: The employee must have insured wages in at least two quarters of their base period in order to qualify for unemployment benefits. The base period is the first four of the last five completed calendar quarters before the week an initial claim application is filed for a new benefit year. Wages paid during your base period are used to determine if the employee has enough wages to qualify for a claim and to calculate how much can be paid in benefits to the employee. The total base period wages must equal or exceed 12 times the high quarter earnings in order to be eligible for unemployment benefits. The high quarter is the base period quarter during which the employee was paid the highest amount of wages from covered employment. The average earnings of the two highest base period quarters must equal to at least the minimum amount specified by law.

Mississippi: The base period is the first four of the last five completed calendar quarters prior to the effective date of your claim. The employee must have worked in at least two quarters of the base period, earned at least $780 in the highest quarter and earned forty times the weekly benefit amount in your base period.

Louisiana: The base period is the first four of the last five completed calendar quarters before the quarter in which the claim is effective. To receive unemployment benefits, the employee must have been paid at least $1,200.00 in total base period wages, and wages must have been earned in at least two of the four quarters in the base period. Total wages paid in the base period must equal or exceed 11/2 times the highest quarter of wages.

2. Is there a waiting period for unemployment benefits?

Alabama: No established waiting period.

Mississippi: There is a one-week waiting period.

Louisiana: There is a one-week waiting period.

3. Is the waiting period for unemployment claims waived, due to the disaster?

Alabama: No established waiting period.

Mississippi: The Department of Labor is not currently enforcing the waiting period for individuals affected by Hurricane Katrina, but there has been no formal waiver of the waiting period. At this time, Mississippi does not accept claims over the internet.

Lousiana: The Department of Labor has issued a statement that it will process claims for unemployment benefits "as soon as possible," but, there has been no formal waiver of the waiting period. The Department has suggested that all individuals should file on the internet to speed up claims processing.

4. If we are paying out accrued vacation pay, may employees also collect unemployment?

Alabama: Certain types of payments, such as wages, vacation pay, holiday pay, workers' compensation, sick pay, and payments under the WARN Act (the plant closing law), may be deducted from unemployment benefits.

Mississippi: Wages over $40 per week may be deducted from unemployment benefits. This means that payment for services to the employer, including commissions and bonuses can reduce benefits.

Louisiana: Unemployment benefits can be reduced by wages earned by an individual. This means all payments for services, including vacation pay, holiday pay, dismissal pay, commissions, bonuses and WARN Act payments may reduce unemployment benefits.

5. Can we make up the difference between an employee's regular pay and unemployment compensation received, without jeopardizing the unemployment benefits?

Yes, if the payments made are not earned by the individual and the employer has no obligation to make the payments, then the unemployment benefits will probably not be reduced or lost.

6. If I give my employees other financial assistance, will this reduce their unemployment compensation benefits?

No, as long as the assistance is not conditioned on the individual providing services to the employer, and the employer has no obligation to make the payments, then the unemployment benefits will probably not be reduced or lost.

7. If my employees are not eligible for State unemployment compensation benefits, what other benefits are they eligible for?

An individual who does not meet the eligibility requirements for State-provided unemployment compensation may be eligible for federal aid under the Disaster Unemployment Assistance program. This is a federal program under the Department of Labor and administered by the State. It provides financial assistance to individuals who have lost their job or business as a direct result of a major disaster declared by the President of the United States, and who are not eligible for regular unemployment insurance benefits.

8. Where can I or my employees get further information?

Alabama: http://dir.alabama.gov/citizen/ or call 1-800-361-4524.

Mississippi: http://mdes.ms.gov/wps/portal/#null or call 1-888-844-3577.

Louisiana: www.LAWORKS.net or call 1-866-783-5567 or 1-888-LAHELPU.

Federal Disaster Unemployment Assistance: http://workforcesecurity.doleta.gov/unemploy/disaster.asp

OSHA

1. Is OSHA going to relax enforcement of its various standards due to the massive disruption associated with Hurricane Katrina?

OSHA cannot tell employers to ignore or violate OSHA and consensus Standards, even in the face of such disruption. But, in the case of some other recent hurricanes, OSHA mobilized its Compliance Officers and Industrial Hygienists to provide "compliance assistance" during the period of initial clean up, and did not meaningfully focus on issuing citations. At present, OSHA is unable to effectively mobilize Compliance Officers in the affected region because of the difficulty in obtaining housing, gasoline, and other logistical support.

2. What OSHA Offices may be involved in either offering compliance assistance or issuing citations?

Regions 4 and 5 include Florida, Alabama, Mississippi, and Louisiana. The Baton Rouge Area Office is the most heavily involved in response followed by the Mobile Area Office. Jacksonville, Florida, has authority over the Florida Panhandle. The Birmingham, Alabama, and Jackson Mississippi Offices have been affected. As the logistical situation improves, OSHA will likely send Compliance Officers from throughout the two Regions.

3. What on-line resources are available with regard to keeping workers safe during clean up and recovery operations?

OSHA has established a page on its www.OSHA.gov website where employers can access over 20 audio and printed guidelines to specific work practices dangers likely associated with clean up and recovery, including flooding, electrical, fall protection, personal protective equipment, chain saws, mold, bloodborne pathogens and bacterial issues, tree trimming, trenching, and heat exposure. These materials can be accessed at http://www.osha.gov/OshDoc/hurricaneRecovery.html.

4. What other on-line materials are available?

OSHA links to the CDC website, which also provides over 50 areas of concern at www.bt.cdc.gov/disasters/hurricanes/katrina.asp.

5. Do OSHA Standards describe when it is unsafe to return employees to the workplace?

Many factors obviously enter in and each employer will have to consider OSHA Standards and commonsense issues. Section 13(a) of the OSHA Act defines "imminent danger" as " . . . any conditions or practices in any place of employment which are such that a danger exists which can reasonably be expected to cause death or serious physical harm immediately or before the imminence of such danger can be eliminated through the enforcement procedures otherwise provided by this Act." OSHA discusses "imminent danger" as where there is "threat of death or serious physical harm," or "a reasonable expectation that toxic substances or other health hazards are present, and exposure to them will shorten life or cause substantial reduction in physical or mental efficiency."

The threat must be immediate or imminent, which means that an employee must believe that death or serious physical harm could occur within a short time, for example, before OSHA could investigate the problem. Once again, this guidance is general, and employers must determine when this unusual State exists.

6. Can an employee refuse to work because of safety concerns?

On OSHA's "worker" page of its website, it expressly instructs employees to first approach their employer when they believe that working conditions are unsafe or unhealthful. OSHA states, "refusing to do a job because of potentially unsafe workplace conditions is not ordinarily an employee right under the OSHA Act." OSHA goes on to state that "employees do have the right to refuse to do a job if they believe in good faith that they are exposed to imminent danger, and good faith means that even if an imminent danger is not found to exist, the worker had reasonable grounds to believe that it did exist."

OSHA discourages employees from walking off the job and states that the employee must generally satisfy four conditions to do so, including 1) asking the employer to eliminate the danger, and the employer then refusing to do so; 2) the employee genuinely believing that an imminent danger existed and the employee did not refuse to work for other reasons; 3) a situation where a reasonable person would agree that there is a real danger of death or serious injury; and 4) there is not enough time due to the urgency of the hazard, to get it corrected through regular enforcement channels, such as requesting an OSHA inspection. In addition to OSHA Act protections, employees may also be protected under the National Labor Relations Act as engaging in "concerted protected activity" where they indicate that their refusal to work or complaint is on behalf of other employees or about an issue of interest to other employees. Under these circumstances, an employer may have a right to "permanently replace" the employee; however, discipline or discharge may be unlawful.

7. What are some of the first safety hazards as waters recede and clean up begins?

OSHA fact sheets raise the risk of heat exhaustion, and the need for sunscreen, frequent rest breaks, and abundant potable water. Toilet and hand wash facilities must be made available. Over-exertion and problems associated with working in the water, including concealed holes and snakes, are a problem.

First aid kits should be available because of the increased risk of infection, and hand washing should be practiced more so than usual. Additional first aid and CPR training may be necessary. Preliminary inspections of worksites for stability, electrical hazards, and flood risk are essential. Architectural and engineering guidance may be necessary. Fire protection and trenching are obvious areas of risk.

Employers should establish a plan for contacting medical personnel in the event of an emergency, and should be aware of unusual hazards, such as downed power lines, frayed electrical wires, gas leaks, or poisonous snakes. You should also recognize the dangers associated with fire, and carbon monoxide from using fuel-powered generators and other equipment. Life vests may be necessary.

Even where specific chemical hazards are not apparent, waterproof boots or steel-toed shoes may be necessary, as well as gloves, long pants, and safety glasses. Sneakers and soft shoes are almost certainly not acceptable. Dust respirators may be necessary if working in a moldy building or otherwise exposed to fungi. Electrical hazards are especially an issue. Likewise, more fire extinguishers and basic training may be required than under usual circumstances.

8. Do I need to inoculate my employees for various illnesses?

The CDC website states under, "Interim Immunization Recommendations for Emergency Responders," that Tetanus and Diphtheria inoculations may be necessary, as well as Hepatitis-B vaccine series for persons who will be performing direct patient care or otherwise expected to have contact with bodily fluids. Employers should be prepared to follow the guidelines of the Bloodborne Pathogen Standard in the event of exposure to water and waste material potentially containing blood or other potentially infectious material. The CDC indicates that at present, there is no indication for the following vaccines to be provided, including Hepatitis-A, Typhoid, Cholera, Rabies, and Meningococcal vaccine.

9. Are there any areas more likely than others to be cited by OSHA?

Every year OSHA issues large numbers of Citations under the Hazard Communication, Scaffolding, Personal Protection Equipment (PPE) and Fall Protection Standards, all of which may be implicated by recovery efforts. As examples, employees may be exposed to spilled chemicals or perform "nonroutine tasks," such as cleaning floors with bleach, which may necessitate obtaining new Material Safety Data Sheets (MSDS) and providing additional Haz Comm training. Similarly, gloves, dust masks and respirators may temporarily be necessary, which may require documented job safety analysis and training. Fall protection and scaffolding always generates scores of citations following storms.

WAGE-HOUR

1. What do we do about lost time records for work already performed but not paid yet?

Try to create the most accurate time records possible. There are two approaches to this problem. The first is to pay each employee based on the number of hours normally worked (assuming this information is available). The second is to ask each employee to estimate as accurately as possible the number of hours worked. The second approach is less likely to result in claims based on an under-payment of wages, but may be more cumbersome. Either way, you should obtain written authorization from the employee allowing you to make corrections (and possibly deductions from future wages) if more accurate time records become available.

2. We used electronic/computerized time clocks. How should we track time while those are disabled or unavailable?

You may record all hours worked by handwritten timesheets. Employers are not required to use time clocks under the FLSA. To ensure the accuracy of the timesheet, it is preferable that employees each fill out their own and record the actual times they start and stop work each day of the workweek. For example, IN- 8 am, OUT- 12 pm, IN- 1 pm, OUT- 5 pm, rather than just listing 8 hours for the day.

3. As we rebuild our operation, is there any flexibility to avoid having to pay overtime as everyone will be working long hours?

There is no flexibility at this time with respect to nonexempt employees to whom the FLSA requires you to pay the minimum wage and overtime. Each employee covered by the FLSA's overtime requirement must receive 1.5 times his or her regular rate for all time worked over 40 hours during a "workweek" (i.e. during the employer's designated 7-day period for measuring overtime). If you have a collective bargaining agreement, it may contain additional overtime requirements.

4. Can employees "volunteer" to work off-the-clock performing services in the employer's employee-assistance center?

No, where the employees' time benefits the employer. For example, where the employer sets up a hotline or other arrangements to assist Company employees with job-related benefits or information, employees volunteering to perform such services are engaged in "hours worked" for FLSA purposes because the work involved in providing those services benefits the employer.

5. Do we have to keep paying our employees if they are not working because we have had to suspend operations on account of hurricane damage?

Generally the answer is no unless you have a policy providing for pay under these circumstances which could give rise to a contract claim. The FLSA requires you to pay employees for all hours worked. Here, because the employees are not working, they are not entitled to pay. One exception is for an employee whose exempt status requires that he or she be paid on a "salary basis." If the employee does not work at all during the particular workweek, you do not need to pay his or her salary for that workweek. If such exempt employees work at some point during the workweek, however, they are generally entitled to their entire salary for that particular workweek.

One approach you might consider is requiring employees to use vacation or leave balances for the days not worked. The U.S. Department of Labor, however, has sometimes disapproved of employers forcing salaried-exempt employees to use vacation or leave balances for days not worked because of employer operations. Another approach would be to establish lower salaries going forward if you anticipate employees working reduced weeks for an extended period of time. Of course, either approach might have a negative impact on employee morale and have legal risks. We recommend contacting legal counsel before implementing either approach.

6. If we continue to pay employees during the period they are out of work, can we charge their vacation and leave balances?

Unless your vacation and leave policies allow for this, such a practice could give rise to a contract claim. Assuming your policies do not address this, you may want to forgo paying employees not working and instead offer them the option of using their vacation and leave balances during this period. (Also, see previous FAQ with regard to salaried-exempt employees).

7. Can we allow employees to contribute their available vacation or other leave time to employees who will be out of work on account of the hurricane?

You can allow employees to contribute such time, but if you require them to do so they could have contract claims unless your vacation and leave policies address this practice.

8. Have hours-of-service regulations been lifted for truck drivers?

The DOT's waiver of the hours-of-service regulations is limited to the delivery of fuel and only until 1 p.m. EDT, September 14, 2005. Other motor carriers supporting Hurricane Katrina relief efforts still are subject to the hours-of-service regulations. Similarly, carriers moving oversize or overweight commercial vehicles still must follow the established regulations, including obtaining necessary permits, for operating in each particular State.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.