The terrible storm that hit near Granbury last week, the monster tornado that struck Oklahoma City on Tuesday and inflicted devastating losses, and early school closings happening today in Dallas due to an impending storm — all of these generate questions for lawyers on weather and the workplace. Here are some thoughts:
No. 1: Know the law when it comes to weather: Texas Labor Code §22.001 deals with disasters. It makes it unlawful to fire or discriminate against employees who leave their places of employment to obey a general public evacuation order issued during an emergency.
What’s an emergency? The statute includes fire, flood, earthquake and storm. (Oddly, it also includes "volcanic activity.")
In Arkansas Internal Medicine Clinic v. Director, Department of Workforce Services, et al. (2012), the Arkansas Court of Appeals said that an employee who was fired for refusing to come to work during bad weather (icy bridges and overpasses) was entitled to receive unemployment. The court did not consider her behavior to be misconduct connected to work.
No. 2: When in doubt, err on the side of cutting slack. But what if there is no public evacuation order? There are no hard-and-fast rules on what to do. Let good judgment be the guide. If an employee wants to leave to pick up his child at school, let him. Don’t worry about setting precedent.
But storms also approach quickly, with little warning, so lawyers should encourage clients to think now about where employees should go for safety if they’re still at work when a storm approaches. Consult with a third party, such as an engineer, on where in the facility it is the safest.
Sometimes, quick thinking literally saves lives. In 1980, during the Wichita Falls tornado, a grocery store manager took everyone at the store into the freezer. It was the only thing left standing after the tornado slammed into the store. All survived.
No. 3: Pay the employee. A business is not a charity. But if someone wants to leave early, let him, and pay him for the day, even if he does not work the full day. He always will remember.
If the employer decides to close the office, it is only responsible for paying nonexempt (i.e. hourly) employees for the time they work. For exempt employees, if the office is closed for less than a full work week, an employer must pay the full salary.
What about employees who get stuck at work and need to remain until replacements arrive, such as in a hospital? Under Department of Labor regulations, if an employee is required to be on duty for specified hours (less than 24), she must be paid for all the time, even if she is allowed to sleep when not working. If the employee is required to be on duty for 24 hours or more, the employer and the employee may agree to exclude from wages any meal and scheduled sleeping periods, provided adequate sleeping facilities are furnished by the employer and the employee can enjoy uninterrupted sleep.
No. 4. Have a plan. Plan now for what may never happen later. Here is a checklist to use when advising clients:
• Talk now to your insurance broker. This goes for employers as well as employees. Figure out the amount of coverage and exactly what the coverage entails. Note to employers: An insurance company may dispute whether you are covered under a business disruption policy. A lawsuit over whether the employer suffered "business interruption" won’t help meet payroll or pay the landlord. Be sure to have cash in the bank
• Take an employee census. A business can’t run without people. Do a census and ask the employees where they will go in case of an emergency or an evacuation. Note: Promise confidentiality, because some employees may balk at telling you. You need to be able to reach them.
• Establish the bosses’ bunker. Have one — a place where executives go. Management must stick together like a ball of sushi rice. People, both employees and third parties, need to know there is leadership even when disaster strikes.
• Back up data. Make sure there is someplace, somewhere for data backup.
• Get smart. Cell phones won’t help, but a PDA and smartphone will. Talk to IT. Storms often interrupt cell phone coverage. PDAs/smartphones can be configured for user-to-user communication.
Above all, be flexible. As General Dwight D. Eisenhower remarked, trust planning but not plans. Stay safe.
Michael P. Maslanka is the managing partner of the Dallas office of Constangy, Brooks & Smith. He is board certified in labor and employment law by the Texas Board of Legal Specialization. His podcasts and "Work Matters" blog can be found at www.texaslawyer.com.