Hurricane Harvey and the FMLA: Are Your Employees Eligible for Leave During a Natural Disaster?

By Jeff Nowak - Franczek Radelet P.C.

August 28, 2017

Our thoughts and prayers are with those in Texas and Louisiana who are in the dangerous path of Hurricane Harvey. Natural disasters like Harvey 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 will raise questions about an employer’s obligation to provide a leave of absence to employees under laws such as the Family and Medical Leave Act.  Several years ago, 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 Harvey:

•    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. Case in point: poor Joe Lane, whose FMLA lawsuit was dismissed after he sought FMLA leave, in part, to clean up his mom’s flooded basement because her health conditions precluded her from doing so.

•    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.

•    What if an Employee was already on FMLA leave when the Hurricane hit and your business now is shut down for a period of time? Here, the FMLA regulations are clear: If your business activity has temporarily ceased and employees generally are not expected to report for work for one or more weeks, these days do not count against the employee’s FMLA leave entitlement.

•    Finally, do you have to pay your employee on FMLA leave while your workplace is closed down? In short, you treat them the same way you would treat another employee on non-FMLA leave.  See my previous post here for an explanation.

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 from several years back 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.