This detailed set of Frequently Asked Questions, fully updated for 2024, addresses the workplace-related issues facing employers in the wake of hurricane-related disasters.
In addition to legal obligations you need to consider, this Insight also addresses the practical questions that most often arise both while preparing and in the aftermath of storms.
The information contained here could be of value beyond the current hurricane season and may be helpful following any natural catastrophe. What are the most critical issues you need to be aware of during preparation and recovery?
TABLE OF CONTENTS
- WORKPLACE SAFETY ISSUES
- EMPLOYEE LEAVES
- PROVIDING ASSISTANCE TO NATURAL DISASTER VICTIMS
- WAGE AND HOUR ISSUES
- LAYOFFS AND BUSINESS CLOSING LAWS
- EMPLOYEE BENEFITS ISSUES
- LABOR RELATIONS
- PERSONAL INJURY LAWSUITS AND WORKERS’ COMPENSATION
- IMMIGRATION LAW
- WORKPLACE PRIVACY REQUIREMENTS
- UNEMPLOYMENT COMPENSATION
1. WORKPLACE SAFETY ISSUES
Will OSHA relax enforcement of its various workplace safety standards due to the massive disruption associated with a hurricane?
The Occupational Safety and Health Administration (OSHA) cannot tell employers to ignore or violate OSHA regulations or consensus standards, even in the face of such disruption. In the case of past hurricanes, tornados, and blizzards, 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.
Of course, OSHA’s emphasis on assistance over enforcement does not mean you should take shortcuts on safety even in the face of such extreme need.
At what point in time are employees most vulnerable?
The greatest threats at most workplaces are presented during the clean-up phase and when restarting businesses. This is because employees are faced with unusual circumstances and are often performing different tasks than their usual jobs. Encourage your employees to think before they act.
If their work will involve non-routine tasks, prior to employees performing work, you should conduct a Job Hazard Analysis (JHA) to determine the possible hazards and then provide training and personal protective equipment (PPE) to mitigate any hazards identified in the JHA.
Finally, make sure you and your employees stay alert for hazards posed by fatigue. Advise your employees to avoid skipping meals and ensure they stay well hydrated.
Can an employee refuse to work because of hurricane-related safety concerns?
OSHA expressly instructs employees to approach their employer first when they believe that working conditions are unsafe or unhealthy.
However, if the condition clearly presents a risk of death or serious physical harm and there is not sufficient time for OSHA to inspect, the worker may have a legal right to refuse to work in a situation in which they would be exposed to the hazard. Thus, employees are protected if they refuse to do a job and have a good faith belief they are exposed to imminent danger.
In addition, 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, but discipline or discharge may be unlawful. If you have a situation where an employee is refusing to work because of hurricane-related dangers, check with your legal counsel before taking disciplinary action.
What are some of the hurricane-specific safety hazards we should keep in mind as clean-up begins?
OSHA fact sheets provide the following recommendations in hurricane-related situations:
- It is essential for you to conduct preliminary inspections of worksites for stability, electrical hazards, and flood risk before having employees perform work. Architectural and engineering guidance may also be necessary, as may be fire protection and trenching.
- Beware of the risk of heat exhaustion especially in the face of OSHA’s proposed heat safety rule, current National Emphasis Program on heat stress, and Region IX Policy for Heat Illness (covering AZ, CA, HI, NV, American Samoa, Guam and Northern Mariana Islands) – provide sunscreen, frequent rest breaks, shade, and abundant potable water. Also ensure that workers who do not normally work in the heat are acclimatized to working conditions. These measures should be documented in a written heat illness prevention plan.
- Make toilet and hand-washing facilities readily available.
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