Hurricane Sandy and the FMLA: Are Your Employees Eligible for Leave During a Natural Disaster?
Our thoughts and prayers are with those on the east coast who are attempting to return to some sense of normalcy in the wake of the devastation left behind by Hurricane Sandy.
Natural disasters like Sandy raise a host of issues for employers: how do you pay your employees during during suspended operations? Whether and to what extent should health benefits and other benefits be offered?
The aftermath of the hurricane also raises questions about an employer's obligation to provide a leave of absence to employees under laws such as the Family and Medical Leave Act. Awhile back, I covered this question, so I refer you that post for a more detailed analysis of an employee's right to take FMLA during a natural disaster and whether the disaster itself could cause a serious health condition requiring FMLA leave.
However, it's worth pointing out again a few general points to consider as we're confronted with natural disasters like Hurricane Sandy:
- Keep in mind that the FMLA does not, in itself, require employers to give employees time off to attend to personal matters arising out of a natural disaster, such as cleaning a flood-damaged basement, salvaging belongings, or searching for missing relatives.
- 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 them unable to perform their 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. Some examples might include the following: 1) as a result of the natural disaster, an employee's chronic condition (such as stress, anxiety or soaring blood pressure) flares up, rendering them unable to perform their job. Where the medical certification supports the need for leave as a result of the natural disaster, FMLA leave is in play; or 2) an employee is required to care for a family member with a serious health condition for a reason connected with the natural disaster. Take, for instance, an employee's parent who suffers from diabetes. If the event took out power to the parent's home, the employee may need to help administer the parent's medication, which must be refrigerated. Similarly, the employee may need to assist a family member when his/her medical equipment is not operating because of a power outage.
- Could the Hurricane actually cause a serious health condition requiring time away from work? See my answer here.
Where an employee is requesting leave as a result of the natural disaster, employers should obtain as much information as possible from the employee to determine whether the absence qualifies as protected leave. Where there is doubt, employers should provide the requisite FMLA paperwork and allow the employee to provide the necessary information to support FMLA leave. (A previous FMLA podcast of ours covers how an employer should respond to a request for FMLA leave. It might be helpful here.)
Also, employers should ensure that medical certification is sufficient to cover the absence at issue. Where more information is required, employers must follow up with an employee to obtain the information necessary to designate the absence as FMLA leave. Moreover, 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.