4. Potential delays in wage payments
One possible consequence of a natural disaster such as Irma is the delayed processing of employees’ wage payments. This situation can cause employers to unintentionally run afoul of state law. Georgia, for example, requires employers to establish pay periods divided into at least two equal periods within the month. In South Carolina, moreover, an employer must provide seven calendar days’ advance notice to employees if there is a change to the designated payday or a decrease in the employee wage rate. Yet, as a practical matter, employers may be unable to process or fund payments to satisfy these requirements, especially in the immediate wake of the storm.
Although some laxity may be afforded to those who experience significant difficulty meeting these types of obligations as a result of the hurricane, the states currently in Irma’s path (Alabama, Florida, Georgia, North Carolina, and South Carolina) have not indicated if there may be any relief from or waiver of the normal wage payment laws. Furthermore, if payroll is processed in these states for employees working in other states, it is important to be mindful of those state laws and potential penalties for delayed payment.
5. Applicable leaves of absences
Employers should bear in mind that employees may be entitled to use certain types of leave to deal with the ramifications of Hurricane Irma.
For example, employees who have suffered a serious injury or illness — or who have a family member who did — may be entitled to leave under the federal Family and Medical Leave Act (FMLA). State or local law may also apply to certain employees. Dade County, Florida has its own family and medical leave ordinance, for example. Even if not covered by federal, state, or local laws providing for time off for illness or injury, an employee may qualify for sick or other leave under a company policy or collective bargaining agreement.
Certain employees may be eligible for leave as volunteer emergency responders. In South Carolina, an employer may not terminate an employee who serves as a volunteer firefighter or EMT and who responds to a declared state of emergency in lieu of coming to work. Alabama and North Carolina have similar laws providing for such unpaid leave.
Employees absent from work to assist with relief efforts may separately qualify for protected time off. Under the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA), employees may take a leave of absence for duty in the uniformed services. For purposes of disaster relief, uniformed services include specified service by members of the National Disaster Medical System, appointment of a “System member” of the National Urban Search and Rescue Response System9 into federal service, the National Guard if called by the President of the United States, and any other category of persons designated by the president during a time of national emergency.
Relatedly, to the extent that employers relax enforcement of their leave policies in light of Hurricane Irma, they should remain mindful of state and federal antidiscrimination laws. Employers should try to ensure that all exceptions are based on legitimate, non-discriminatory reasons and are consistently applied across the workforce.