While many of us were shaken by both Hurricanes Harvey and Irma, others were left to ponder what our responsibilities as employers are to our employees during a natural disaster. Clearly, employers must consider the circumstances that potentially many employees will find themselves in during a natural disaster, and adjust policies accordingly. The following Q & A’s may provide you with guidelines to add to or update both your Standard Operating Procedures (SOPs) and Employee Handbooks.

If an employee does not report to work due to an evacuation order, can you still fire her/him?

Each employee’s circumstances would need to be handled on a case-by-case basis. In general, there are no overall laws that protect employees from immediate dismissal if they choose to not report to work during a storm, even in the case of their area being evacuated. Clearly, additional factors such as communication by the employee to his/her supervisor of specific circumstances should be strongly considered.

What if an employee does not notify his/her employer nor report to work because they are waiting in line for gas, putting up storm shutters or sandbagging their home on the water?

From an employer’s perspective, they could consider this a no-call, no show. They treat the fact that employees need to attend to these concerns not as a protected right. Having said that, employers should respond using the lens of the disaster, and each employee’s situation.

Can an employee use the Family Medical Leave Act (FMLA) to support an absence during a natural disaster?

Yes, if he/she argues that he/she was affected or was assisting a direct family member in need of medical care. Additionally, as with any FMLA absence, the employee must qualify as a protected individual for FMLA protection to occur.

What about employee protection based on OSHA law?

There are no specific OSHA laws requiring companies to evacuate their employees during a natural disaster. However, OSHA regulations enforce an employee’s right to work in a reasonably safe workplace. So, if a workplace has the potential for endangering an employee’s life, he/she can make a case to OSHA.

What should an employee do in a natural disaster if they know they will not be reporting to work?

1. Use open communication to discuss his/her specific circumstances ahead of not reporting to work.
2. Document all his/her discussions.
3. Request that his/her employer capture in writing why they are refusing the employee’s request to not report to work.

For further guidance, consult specific state law where employees work and the organization’s Human Resources department.