I’m back in the office after Hurricane Irma and I immediately began fielding phone calls and Facebook messages (Facebook.com/JimGarrityOnline) from Florida & Georgia employees who are home caring for sick relatives or who themselves are suffering from stress, anxiety or physical injury, all directly related to Hurricane Irma.
Here are some quick thoughts. Violations of your rights under these laws may entitle you to pursue a legal claim against your employer.
- You may be entitled to FMLA leave, and/or reasonable accommodation under the ADA. Employees who were injured during the storm, or who are suffering stress or anxiety triggered by actual or feared loss of life because of it, may be entitled to leave under either or both of these laws. The ADA generally applies to employers with 20 or more employees. The FMLA applies to employers with 50 or more employees within a 75-mile radius of the employee’s work location. If you need unpaid leave, you should immediately submit the appropriate forms. If you cannot access the appropriate forms, you should send an email or text message to your HR office or to your immediate supervisor – whoever you can reach. Courts generally recognize that in situations like this employees may be without power or access to a computer, so the law allows some flexibility from the normal requirements. But you’ve got to communicate your need to the employer in some form, and it should be in a form that allows you to later prove you made the request. If nothing else, make a phone call and leave a voice mail. Do not wait until you’re able to return to inform the employer why you took leave. Do it now.
- You might be entitled to pursue a claim if you evacuated because of Governor Scott’s evacuation orders and were then fired because of it. In some situations an employer who fires workers because they evacuated in compliance with a governor’s order may be breaking the law. Ask about this. You might have powerful rights.
- You are entitled to FMLA leave to care for an immediate family member, but not to help them pick up the pieces after a storm. The FMLA allows you to take time off to care for a family member with a serious health condition, but the need for leave must be medically related. There is no right to FMLA leave to help a family member restore power or preserve belongings that might have been damaged or strewn about during a hurricane.
- You are entitled to regular pay if you are a salaried employee, and entitled to your hourly wage if you are performing work while out of the office during a storm. In Florida and Georgia there is no law that allows an employer to avoid its normal salary and wage obligations just because of a hurricane or because of a declared state of emergency. And if you work on an hourly-wage basis, you are entitled to your regular pay plus overtime pay as appropriate if you are continuing to work from home or provide other services to your employer.
- You may be entitled to unemployment benefits, and to federal Disaster Unemployment Assistance (DUA), if you are displaced from your position as a result of Hurricane Irma. Many areas in Florida, for example, were the subject of a federal disaster declaration. if you are displaced and are losing income you should apply for state unemployment benefits. But even if you are determined to be ineligible for state benefits, you should still immediately apply for DUA benefits. More information on DUA benefits can be found by clicking here.
- Large-scale layoffs at your workplace may be subject to the Worker Adjustment and Retraining Notification Act (WARN). This law generally applies to employers with more than 100 employees who are laying off more than 50 employees at once. This law requires the employer to give specific advance notice and imposes other requirements as well.
Jim Garrity, Employee Rights Lawyer
Florida & Georgia