United States: Cleaning Up From Hurricane Sandy: Important Employment Issues

Natural disasters like Hurricane Sandy can create a host of employment challenges for employers, from wage-hour concerns to employee leave and employee safety. As businesses struggle to re-open and resume operations, here are some important employment guidelines to consider.

Are Employers Required to Pay Employees for Missed Work Time Because of a Natural Disaster?

Generally, employers are not required under federal law to pay non-exempt employees for hours not actually worked by them, including absences caused by a natural disaster. The employer has the discretion to allow or require non-exempt employees to use paid leave avail-able to them for such absences. However, the employer may be obligated to pay non-exempt employees for hours not worked in the following situations:

  • The employer has non-exempt employees who are paid fixed salaries to work fluctuating work weeks. Such employees must be paid their full weekly salaries if any work was performed during the week of a natural disaster.
  • The employer agreed to pay for these types of absences pursuant to a collective bargaining agreement or its employee handbooks or policies.
  • The employer requires certain non-exempt employees to be on-call at or nearby the workplace during a natural disaster (such as maintenance and repair, public safety, IT, or other essential personnel) and the employee cannot leave or use that time effectively for his or her own purpose. In these situations, the employees must be paid for the on-call time, even if no work is actually per-formed. This would not apply, though, if the employee were simply at home and available to be reached by company officials if needed.
  • The employer requires employees to wait at the workplace either during or after the natural disaster (i.e., for power to return to the workplace). The waiting time is compensable.

Exempt employees generally must be paid for full or partial day absences caused by office closures lasting less than one work week due to a natural disaster, if s/he performs any work in that work week, including working from home. However, subject to the terms of any collective bargaining agreement or employment policy, an employer may require exempt employees to use paid leave available to them. However, if an exempt employee does not have sufficient accrued paid leave to cover the work time missed due to any weather closure, the employee must still be paid his or her full weekly salary. Closures for a full work week need not be paid if no work is performed. Further, after re-opening the business, an exempt employee's absence caused by transportation difficulties is considered by the U.S. Department of Labor (DOL) to be a personal absence and the employer can place the employee on leave without pay, require the employee to use accrued leave time for a full day of missed work or to "make up" the lost time after s/he returns to work.

To avoid problems, employers should decide as soon as possible, and preferably before re-opening, whether they will offer paid "weather days" for employees who are absent because of a natural disaster and whether employees will be allowed or required to use vacation or paid time off to cover absences. Employers should also ensure that their payroll systems are accessible from alternate locations, if needed, and be pre-pared for changes such as employee absences, working from home or longer shifts. Also, state laws may impose additional payment obligations on an employer following a natural disaster and employers are advised to consult with legal counsel to ensure that they are in compliance with such laws.

Are Employees Entitled to Leave During or After a Natural Disaster?

Leave to Care for a "Serious Health Condition." The Family and Medical Leave Act (FMLA) does not expressly require employers to give employees time off to attend to personal matters arising out of a natural disaster. However, an employee would qualify for FMLA leave when, as a result of a natural disaster, the employee suffers a physical or mental illness or injury that meets the definition of a "serious health condition" and renders him or her unable to perform the job, or the employee is required to care for a spouse, child or parent with a serious health condition who is affected by the natural disaster (for example, a covered relative injured during the natural disaster or power outages affecting administering medication or use of equipment). Such an impairment may even be significant enough to rise to the level of a disability, triggering an employer's obligations under the American with Disabilities Act (ADA) and similar state and local laws. For example, in the wake of a natural disaster an employee may become afflicted by post-traumatic stress disorder (PTSD) that renders the employee unable to perform his or her job. In such a situation, the employee may be entitled to take FMLA leave. The employer may be required to provide reasonable accommodations to the employee under the ADA and/or similar state or local statutes, such as the option to work from home or provide leave to receive treatment or counseling for his or her condition, as long as it would not place undue hardship on the operation of the employer's business.

When an employee requests leave as a result of a natural disaster, the employer should obtain as much information as possible from the employee to determine whether the absence qualifies as protected leave. Employers should ensure that medical certification is sufficient to cover the absence at issue. Where more information is required, employers must follow up with the employee to obtain the information necessary to designate the absence as FMLA leave. When an employer has reason to doubt the reasons for FMLA leave, they have the right to seek a second opinion to ensure FMLA leave is appropriate.

Military Leave and Emergency Workers. Employees called upon to serve as relief workers to help with a natural disaster are most likely protected under the Uniformed Service Employment and Reemployment Rights Act of 1994 (USERRA) along with members of the national guard, reserve and uniformed services. Employers are required to provide unpaid leave to such employees upon timely notice from the employee (how much notice depends on the circumstances), written or oral, that they have been called to service. Employers are also prohibited from discriminating against such employees because of their membership, application for service, or obligation for service in the armed forces, including terminating, denying employment, re-employment, retention, promotion, or any other benefit of employment. Throughout the employee's period of leave, the employee's seniority, health care and benefits must be maintained and the employee is entitled to re-employment rights upon timely application for return to work. New York has state laws patterned after USERRA that provides similar rights to employees called to service following a natural disaster.

Of course, employers may choose to offer employees paid leave for time spent volunteering to assist with emergency services and disaster relief efforts. Where employers maintain leave banks for employees, they can also allow employees to donate leave to the leave bank and then award the donated leave to other employees who, in turn, use the leave to volunteer disaster relief services to the community.

Are Employees Who Are Not Working Because of a Natural Disaster Entitled to Unemployment Benefits?

State unemployment benefits may be available to employees who are out of work due to a natural disaster. Unemployed workers will need to meet the standard eligibility requirements for collecting such benefits, including earning the appropriate level of wages during the "base period" of time and being out of work for reasons other than their own misconduct. An employee's failure to report to work after a natural disaster, without good cause, and after being directed to do so by an employer who is open for business, may qualify as misconduct. New York employers can consult the website of the New York State Department of Labor for more information. New Jersey employers should check the website of the New Jersey Department of Labor and Workforce Development. Connecticut employers can access the website of the Connecticut Department of Labor. Pennsylvania employers can review the website of the Pennsylvania Department of Labor and Industry.

Alternatively, employees may be eligible to receive Disaster Unemployment Assistance. This is a federal program under the Department of Labor and administered by the states. It provides financial assistance to individuals who have lost their jobs or businesses as a direct result of a major disaster declared by the President, and who are not eligible for standard unemployment insurance benefits. This assistance is also available to self-employed individuals, owners of farms and ranches, farm and ranch workers, as well as fishers and others who are not normally covered by state un-employment compensation. The President has declared New York, New Jersey, Connecticut, Delaware, Pennsylvania, Maryland, Massachusetts, New Hampshire, Rhode Island, Virginia, West Virginia, and the District of Columbia to be federal major disaster areas following Hurricane Sandy. Information is or should be avail-able in the near future from these states' departments of labor.

What Other Employment Issues Should You Be Aware of Following a Natural Disaster?

Employee "Volunteers." All employers, including private nonprofit organizations, should be mindful of allowing employees to "volunteer" their time to assist the employer after a natural disaster. According to the DOL, if any employee performs duties that they regularly perform and that benefit the employer, they cannot be treated as "volunteers" and must be paid their regular compensation for their services. Employers are advised to consult with legal counsel to ensure that employees are being treated appropriately following a natural disaster.

Continuation of Employee Benefit Programs. Employers should decide and discuss with their vendor as soon as possible whether and to what extent they will maintain coverage of employee benefits during situations where their business is not operating and/or employees are not working during and following a natural disaster. For a COBRA-covered health plan, the decision to discontinue coverage and terminate any and all benefit plans following a natural disaster must be communicated to the employees within 30 days or less of the natural disaster. If an employee is no longer eligible for coverage under an ongoing plan because the employee is not working during or after a natural disaster, the employer is required to send COBRA packages to employees and their covered dependents within 45 days of the "qualifying event" (most likely, the natural disaster). It is possible that the government will provide some deadline extensions and employers are advised to consult with their vendor or legal counsel to ensure they are in compliance.

Worker Adjustment and Retraining Notification Act (WARN). The federal WARN Act, 29 U.S.C. § 2101 et seq., which imposes various notice requirements on certain larger employers prior to plant closings and or mass layoffs contains an exception for events directly caused by a natural disaster that permits employers to give notice to employees as soon as practicable following the disaster. However, the employer will be required to affirmatively prove that it has satisfied the exception if it provides less than 60 days notice to employees. Some states, including New York and New Jersey have mini-WARN acts that apply to smaller employers. See the New York Worker Adjustment and Retraining Notification Act, N.Y. Lab. Law §§ 860 to 860-i (2011) and N.Y. Comp. Codes R. & Regs. tit. 12, § 921-7.1 (2011); the "Millville Dallas Airmotive Plant Job Loss Notification Act" ("NJ WARN Act"), N.J.S.A. 34:21-1, et seq. Connecticut has a plant closing law, see Conn. Gen. Stat. § 31-51o (2012). The City of Philadelphia has an ordinance requiring notice for a group layoff which can be found at Title 9, Chapter 9-1500 of the Philadelphia Code.

Occupational Safety and Health Act (OSHA). Under OSHA, almost all employers are responsible for protecting employees from "imminent danger" in the workplace which is defined 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." Such dangers would include certain "natural phenomenon" such as a natural disaster that threatens the safety and health of employees. Employers should be mindful of the unique safety concerns presented during and after a natural disaster when requesting employees come to work. OSHA provides employees with 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." Thus, if an employee reasonably believes that an employer is putting him or her in imminent danger by demanding that they return to work during or after a natural disaster, s/he may file a complaint with OSHA and ask for whistleblower protection. OSHA has established pages on its website where employers can access numerous audio and printed guidelines to specific work practice dangers likely associated with clean up and recovery, including flooding, electrical, fall protection, personal protective equipment, chain saws, mold, bloodborne patho-gens and bacterial issues, tree trimming, trenching, and heat exposure. See www.osha.gov .

National Labor Relations Act (NLRA). Employers' treatment of employees following a natural disaster may be subject to the terms of a collective bargaining agreement. Employers may be required to meet with labor representatives following a natural disaster and confer in good faith with respect to any consequent changes in wages, hours and other terms or conditions or employment, including the effects of a decision to go out of business completely. Further, like OSHA, the NLRA also gives employees the right to refuse to work in conditions they believe (reasonably and in good faith) would be unsafe. Thus, the employer may be required to make certain changes in the workplace. The refusal of employees, whether union or non-union, to work because of their reasonable good-faith belief that their safety will be compromised may be a "concerted activity" that is protected under the NLRA. Employers, unionized or not, also should be aware that employee complaints or comments posted on social media, including Facebook, YouTube, Twitter, LinkedIn, media sites and the like, concerning workplace safety, leave or wage policies following Hurricane Sandy, may well be protected "concerted activity" under Section 7 of the NLRA and that discharge or discipline for such activity may be considered unlawful by the NLRB.


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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.