Staffing During Hurricanes & Other Emergencies in Florida
Florida law mandates district facilities and personnel to be available during hurricanes and emergencies. Public schools may be used as shelters, with proper staffing required. Fair Labor Standards Act outlines wage and hour issues during emergency situations.
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Staffing During Hurricanes & Other Emergencies Nathan J. Paulich, Melissa Torres & Alex Sarsfield Thompson, Sizemore, Gonzalez & Hearing, P.A. Tampa, FL npaulich@tsghlaw.com; (813) 273-0050
Background Florida law requires district facilities and personnel to be available for use in the event of a hurricane or other emergency. Section 252.38, Fla. Stat. (2017) states: During a declared state or local emergency and upon the request of the director of a local emergency management agency, the district school board or school boards in the affected area shall participate in emergency management by providing facilities and necessary personnel to staff such facilities. The Florida Division of Emergency Management supports using public schools as shelters because they account for about 97 percent shelter space. Therefore, it can be presumed that public schools will be used as hurricane evacuation shelters, and often staffed by district personnel. 1 97 percent of statewide hurricane evacuation 1 Division of Emergency Management, 2018 Statewide Emergency Shelter Plan 1-4 (January 31, 2018).
Example: Hurricane Irma (2017) In 2017, Governor Rick Scott issued an executive order in response to Hurricane Irma that declared a state of emergency for all sixty-seven counties in Florida and required: [a]ll public facilities, including elementary and secondary schools . . . be made available at the request of the local emergency management agencies to ensure the proper reception and care of all evacuees. 1 Scott stated that each political subdivision with the State of Florida may waive the procedures and formalities otherwise required of the political subdivision by law pertaining to entering into contracts, incurring obligations, and employment of permanent and temporary workers.2 The Commissioner of Education, Pam Stewart, signed an emergency order to extend Governor Scott s executive orders for an additional 30 days to accommodate the victims of Hurricane Irma.3 1 See Fla. Exec. Order No. 17-235 (Sept. 4, 2017). 2 See id. 3 See Emergency Order Extending Emergency Order to Accommodate Victims of Hurricane Irma (Nov. 9, 2017), http://www.fldoe.org/core/fileparse.php/18532/urlt/HIFO-K12Extension11917.pdf.
Wage & Hour Issues: Fair Labor Standards Act The FLSA is a federal law that establishes minimum wage and overtime pay. It covers both private and public employers. There are statutory exemptions to the mandate for certain employees, e.g., executive, professional, and administrative exemptions.1Teachers are exempt as employee[s] employed in a bona fide professional capacity. 2 The term employee employed in a bona fide professional capacity in FLSA means any employee with a primary duty of teaching, tutoring, instructing or lecturing in the activity of imparting knowledge and who is employed and engaged in this activity as a teacher in an educational establishment by which the employee is employed.3 Federal employment laws and regulations do not change during disasters. Employees must be paid, and paid properly.4 There are several payroll-related concerns that can be triggered by an emergency situation. 1 29 U.S.C. 213. 2 29 C.F.R. 541.303. 3 Id. 4 Sejour v. Steven Davis Farms, LLC, 28 F. Supp. 3d 1216 (N.D. Fla. 2014) (stating an employer's [ ] obligations under the FLSA are not excused due to fire, weather, or other act of God. ).
Wage & Hour Issues: FLSA Non-Exempt Employees: Under the FLSA, non-exempt workers must be paid only for the time they work. As a result, employers need not compensate non-exempt employees who are not working because of an emergency.1 During the emergency, must we keep paying overtime? Yes. During the emergency, must we keep paying overtime? Yes. There is no FLSA emergency exception that relieves the obligation to pay FLSA-required wages. Employees subject to the FLSA s overtime provision must receive overtime premium at a rate of at least 1.5 times their regular rates of pay for all hours worked over 40 in the employer s designated seven-day workweek(s).2 Pursuant to a collective bargaining agreement, employees of a public agency may receive, in lieu of overtime compensation, compensatory time off at a rate not less than one and one-half hours for each hour of employment for which overtime compensation is required by this section.3 1 29 U.S.C. 201, et. seq. 229 U.S.C. 207 329 U.S.C. 207(o).
Wage & Hour Issues: FLSA Can an employee volunteer to perform services for us without pay? It depends. Can an employee volunteer to perform services for us without pay? It depends. The FLSA does not permit an individual to perform hours of volunteer service for the same public agency when such hours involve the same type of services that the individual is employed to perform for the same public agency.1 The phrase same type of services means similar or identical services. 2 If the employee performs any such work, they must be paid for that work. If the employee performs services that are different then what he/she is employed to perform, than they may volunteer their time without pay.3 It is important to make that clear prior to allowing an employee to volunteer their time. 1 29 U.S.C. 203(e)(4)(A)(ii) 2 29 C.F.R. 553.103. 3See 3:27.State and local government employees Public sector volunteers, 1 Wage and Hour Law 3:27.
Wage & Hour Issues: FLSA Exempt Employees: When an employer shuts down its operations because of adverse weather conditions for less than a full workweek, exempt employees must be paid their full salary. The same rule applies if the employer choses to send staff home due to weather or emergency conditions.1 Nonetheless, exempt employees may be required to use accrued leave or vacation time (in full or partial days) for those absences. An employer can direct exempt employees to take paid time off for the closure, pursuant to the employer s bona fide leave or vacation policy.2 If, on the other hand, an employee does not have any available leave time, the employee is entitled to his/her full guaranteed salary if the employer decides to close due to weather. The important aspect is that the employee receives his/her full pay for the entire week. 1 29 C.F.R. 541.602(a). 2 See 29 C.F.R. 541.602(b)(2).
Wage & Hour Issues: FLSA What if the employer s offices or schools remain open during inclement weather or other What if the employer s offices or schools remain open during inclement weather or other types of disasters and an employee fails to report to work? types of disasters and an employee fails to report to work? Leave bank or salary deductions may be made when the employee is absent from work for a day or more for personal reasons, other than sickness or accident.1 Thus, if an employee is absent for one or more full days for personal reasons, the employee s salaried status will not be affected if deductions are made from the employee s salary for such absences. An absence due to inclement weather or other emergencies does not constitute an absence due to sickness or accident, but instead are for personal reasons.2 When the office is open, an exempt employee who has no accrued benefits in the leave bank account does not have to be paid (i.e., may be placed on leave without pay) for the full day(s) s/he fails to report to work due to such circumstances such as choosing to evacuate 1 29 C.F.R. 541.602(b)(1). 2U.S. Dep t of Labor, Wage and Hour Division, FLSA2005-41 (Oct. 24, 2005). Employees who are absent due to inclement weather, like transportation difficulties due to the weather, then those absences do not constitute sickness or accident but are instead absences for personal reasons.
Wage & Hour Issues: FLSA NOTE NOTE: the key term in these scenarios is may. An employer may choose to deduct or not make deductions from an employees salary. In situations with schools, hurricane days are often made up resulting in longer work days or added school days at the end of year. Therefore employees like teachers often end up working to make up those days missed during emergencies. TIP TIP: if may be helpful to create an emergency operations policy or issue a bulletin regarding emergency pay procedures. The procedure can state what is expected of exempt, non- exempt, non-bargaining employees, and those included in a bargaining unit. It is important to inform employees at the outset whether they are expected to work during times of emergencies, but in return they must know what pay, if any, they will receive.
Reimbursement of Costs? The Robert T. Stafford Disaster Relief and Emergency Assistance Act authorizes the President to provide Federal assistance when the magnitude of an incident or threatened incident exceeds the affected State, Territorial, Indian Tribal, and local government capabilities to respond or recover.1 Local governments include but are not limited to counties, municipalities, cities, towns, townships, local public authorities, and school districts school districts.2 Funds are requested from the Federal Emergency Management Agency (FEMA). For FEMA to provide assistance, the President must declare that an emergency or major disaster exists. Not all costs are recoverable. For example, costs for school make-up days, including contracted costs for bus service for make-up days, are not recoverable.3 1 42 U.S.C. 5121 et. seq. 2 42 U.S.C. 5122(8). 3 See Federal Emergency Management Agency, Public Assistance Program and Policy Guide- FP-104-009-2 1 (January 2018).
Reimbursement of Costs? FEMA provides Public Assistance funding for costs related to emergency sheltering for survivors. Typically such sheltering occurs in facilities with large open spaces, such as schools. Shelter Facility Costs can include:1 Shelter Staff Costs can include:2 Utilities such as power, water, and telephone Medical staff Minor facility modifications if necessary to make the facility habitable, compliant with the Americans with Disabilities Act (ADA), functional as a child care facility, or functional as an animal shelter Personal assistance service staff Public Information Officer Social workers Food service workers Restoration to return the facility to its condition prior to use Custodial and facilities staff Generator costs Secure storage space for medical supplies 1 See Federal Emergency Management Agency, Public Assistance Program and Policy Guide- FP-104-009-2 69 (January 2018). 2 Id.
Employee Leave Issues: Family and Medical Leave Act In the aftermath of a natural disaster, questions arise regarding an employer s obligations under laws like the FMLA and the employee s rights to take FMLA leave during a natural disaster. Common questions can include: Can the employee take time off to care for a family member during the natural disaster? Can the employee take time off for a physical or mental illness or injury as a result of a natural disaster? What if he/she was already on FMLA when the natural disaster occurred? As an employer, must I continue offering benefits like health insurance to the employee on FMLA due to the natural disaster? Employees requesting leave could be protected by the FMLA to the extent they otherwise meet the FMLA s eligibility requirements. Even in the absence of state or federal protection, an employer s internal policies may extend protection to such individuals.
FMLA Brief Overview Public employers are required to provide up to 12 weeks of unpaid leave per year to eligible employees who need the leave: due to the birth of a child or placement of an adopted child; to take care of a child, spouse, or parent who has a serious health condition; for the employee s own serious illness that makes the employee unable to perform the function of the position of such employee. any qualifying exigency arising out of the fact that the employee s spouse, son, daughter, or parent is a covered military member on covered active duty. 1 Eligible Employees: Worked for a covered employer for at least 12 months during which he or she completed at least 1,250 hours of work.2 A serious health condition is an illness, injury, impairment, or physical or mental condition that involves inpatient care or continuing treatment by a health care provider.3 1 29 U.S.C. 2612. 2 29 U.S.C. 2611. 3 29 U.S.C. 2611(11).
FMLA Potential Issues 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. For example: 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 An employee on FMLA leave due to a natural disaster is entitled to the same rights as he/she would have had if the leave was for any other reason.
FMLA Potential Issues What if an employee is already on leave when the natural disaster occurs? If the school is What if an employee is already on leave when the natural disaster occurs? If the school is closed, do those days count against the individual s 12 week entitlement? closed, do those days count against the individual s 12 week entitlement? Hurricane days and the like are never mentioned in the FMLA, but 29 C.F.R. 825.200(h) covers analogous situations to school closures caused by weather: As per the rules in 29 C.F.R. 825.200(h), if an employee is on FMLA leave for the whole week, the holiday (or the hurricane day ) still counts against their 12 allotted weeks. If the leave only takes place for part of the week (e.g., Tuesday-Thursday), then the school closure does not count as part of FMLA leave unless the employee was otherwise scheduled and expected to work during the holiday. But, if the employer's operations have temporarily ceased and employees generally are not expected to report for work for one or more weeks (e.g., a school closing two weeks for the Christmas/New Year holiday or the summer vacation or an employer closing the plant for retooling or repairs), the days the employer's business activities have ceased do not count against the employee's FMLA leave entitlement. 29 C.F.R. 825.200(h).
FMLA Potential Issues Thus, it appears that if a school/office is closed for a week or more because of a storm, the days the employment site is closed would not count against an employee's FMLA leave allotment. TIP TIP: 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. Additionally, employers can provide leave from their own employment policies even if the leave is not protected under the FMLA. For example, a policy on declared emergency paid leave. Policies of this sort allow employees to request leave for certain conditions, like inability to work due to evacuation, personal injury or significant damages to a personal residence, or participation in relief efforts.
Bargain to Address Concerns Before they Arise Hurricanes and other emergencies will bring with them many questions that districts will have to address by utilizing their collective bargaining agreements. The Public Employees Relations Act (PERA), 447.201-609, Florida Statutes (2017), requires districts to bargain in good faith over mandatory subjects, such as wages, hours, and terms and conditions of employment. A call-back procedure for district staff during an emergency is a mandatory subject of bargaining.1 Although Florida law requires district personnel to staff school facilities when a state of emergency is declared, there could be an unfair labor practice claim if the district unilaterally implements a staffing procedure that is different than what was bargained for in the CBA.2 District employees rights may also be established by an existing past practice.3 When district employees' have a reasonable expectation as to the continuation of certain benefits, then a past practice has been established and the district must re-bargain or provide sufficient notice if it wants to change its policy.4 1 See United Sch. Emps. of Pasco Cty. v. Sch. Dist. of Pasco Cty., 33 FPER 321 (PERC Jan. 15, 2008). 2 Id. 3 See Fla. Police Benevolent Ass'n, Inc. v. Sheriff of Orange Cty., 67 So. 3d 400, 402 (Fla. 1st DCA 2011). 4 Id.
Example: United Sch. Emps. of Pasco Cty. v.. Sch. Dist. of Pasco Cty., 33 FPER 321 (PERC Jan. 15, 2008). To comply with the statute requiring district personnel to staff facilities during emergencies, the district developed a call-back procedure that relied on volunteers. The union did not object to that procedure. The school district's superintendent then issued a memorandum to all employees regarding emergency shelter responsibilities. The memo provided that all necessary employees were subject to call-back during declared emergency situations if there were insufficient volunteers. The union objected to this change, contending that the district committed an unfair practice in violation of Florida law by unilaterally changing its past practice for staffing procedures during an emergency. The Public Employee Relations Commission (PERC) ruled in favor of the employees, concluding that: [T]he School District violated Section 447.501(1)(a) and (c), Florida Statutes (2007), by unilaterally changing its past practice of using only volunteers to staff schools which were being used as shelters during declared emergencies, to a new policy requiring all employees represented by the USEP to be available to work at the shelters during declared emergencies.
Proactively Address a Shift in Policy In order to avoid a potential unfair labor practice charge, districts should notify the union of planned changes to its required staffing procedures as soon as practicable, or as far in advance as the collective bargaining agreement so requires.1 However, if your district does not have a clear procedure in place for required staffing during a hurricane or other emergency, it is best practice to notify the union of a proposed change to address such a procedure immediately. The amount of time necessary for notice of a proposed change may vary based on the circumstances surrounding the emergency. The law only requires that the district give adequate notice of a change in the terms and conditions of employment so that the union has a reasonable opportunity to bargain prior to implementing the decision.2 1 See Emps of Pasco Cty. (requiring 60 days notice of the district s unilateral change in its past practice for staffing procedures during emergencies). 2 See City of Jacksonville v. Jacksonville Supervisor's Ass'n, Inc., 791 So. 2d 508, 510 (Fla. 1st DCA 2001).
Non-Bargaining Employees As for non-bargaining unit employees, terms and conditions of employment during these times of emergency shall be as set out in the policies that they agree to when starting employment.
Force Majeure Clauses Some collective bargaining agreements or contracts contain more generic force majeure clauses, which set forth the rights and duties of the district and employees in emergency situations caused by such things as unforeseeable forces of nature. Force majeure clauses are contract provisions that relieve the parties from performing their contractual obligations when certain circumstances beyond their control arise, such as a hurricane, making performance inadvisable, impracticable, or impossible.1 However, force majeure clauses do not alter the obligations of the parties unless the circumstance beyond their control i.e., a hurricane directly affects a party s performance under the terms of the agreement.2 Districts may tailor their force majeure clauses to encompass both natural disasters, like hurricanes, and other emergencies. 1. See Jennifer Sniffen, In the Wake of the Storm: Nonperformance of Contract Obligations Resulting from a Natural Disaster, 31 NOVA L. REV. 551, 556 (2007). 2. Id. at 566.
Americans with Disabilities Act (ADA) Accommodations After Hurricanes and Other Emergencies Staffing issues may arise after a hurricane or other emergency due to disability and necessary accommodations for district employees. Under the ADA, district employees who are injured as a result of a hurricane or other emergency may be entitled to reasonable accommodation by the district. Disability Disability: a physical or mental impairment that substantially limits one or more major life activities of an individual; a record of such an impairment, or being regarded as having such an impairment. 1 Major life activities Major life activities: those which include, but are not limited to sleeping, walking, standing, lifting, ... [and] bending. 2 A district employee may request an accommodation by simply letting the employer know that they need an adjustment or change at work for a reason related to a medical condition.3 However, the district need not grant any request by an employee that is unreasonable.4 1 42 U.S.C. 12102(1). 2 42 U.S.C. 12102(2)(A). 3 See Mattingly v. Univ. of S. Fla. Bd. of Trustees, 931 F. Supp. 2d 1176, 1184 (M.D. Fla. 2013). 4 Id.
Examples of Potential ADA Accommodations After an Emergency An employee with an existing anxiety or stress disorder might have his or her condition exacerbated by the hurricane experience and need time off to recover or an accommodation to adjust to the stress. An employee with a physical ailment might need an ADA accommodation because of aggravating the condition while cleaning up after the hurricane. An employee might have received a new injury during the hurricane or during the clean-up, which qualifies as a long-term and severe serious health condition and justifies time off after the hurricane has passed.
Employees Who Serve in the Military or Volunteer Federal law Federal law: Uniformed Services Employment and Reemployment Rights Act ( USERRA )1 Employees who serve in any branch of the military or National Disaster Medical System ( NDMS ) may be covered under federal law by the USERRA. If the district employee takes leave under USERRA during a hurricane or other emergency, the district has three obligations.2 Prohibition against discrimination: under the Act, a person cannot be denied initial employment, reemployment, retention, promotion, or any benefit on the basis their membership, application for service, or obligation for service in the armed forces; Continuation of benefits while on leave: USERRA also requires employers to provide eligible employees with up to five years of unpaid leave during the life of their employment. Throughout this period, the employee s seniority, health care, and pension benefits must be maintained; and Right to reemployment: returning service members have a virtually unfettered right to reemployment by their pre-service employers upon timely application for return to work. 1 See U.S. Dep t of Labor., About USERRA: Know Your Rights, Your Rights, https://www.dol.gov/vets/programs/userra/aboutuserra.htm#whoiscovered. 2 See U.S. Dep t of Labor, USERRA Advisor: Discrimination, https://webapps.dol.gov/elaws/vets/userra/ee_disc.asp.
Employees Who Serve in the Military or Volunteer Florida Florida law law: The Florida Uniformed Servicemembers Protection Act.1 Provides protections for any district employee who is called upon during a hurricane or other emergency. All district employees who are members of the Florida National Guard and who perform active duty for the state in an approved event, disaster, or operation are entitled to a 30-day paid leave of absence (for each such event or disaster), with no loss of time or efficiency rating. This leave may not be extended except by executive order.2 Florida law Florida law: The Florida Disaster Volunteer Leave Act.3 Grants state employees who are certified disaster service volunteers of the American Red Cross a paid leave of absence for up to 15 working days in any 12-month period following a disaster designated as Level II or above by the American Red Cross. An employee granted leave under this Act is not considered an employee of the state for purposes of workers compensation claims that may arise relating to such leave. Applies to natural disasters occurring within Florida's borders. The Act requires approval of the Governor and the Cabinet for leave to respond to a disaster occurring outside of Florida, but within the boundaries of the United States. 1 250.80-250.84, Fla. Stat. (2017). 2 250.48, Fla. Stat. (2017). 3 110.120, Fla. Stat. (2017).
Employee Misconduct An employee cannot be disciplined for engaging in conduct protected by the law (e.g., requesting an ADA accommodation, taking FMLA leave, etc.) related to hurricanes or other natural disasters. Employee misconduct, however, is not protected. An employee may be disciplined for misconduct consistent with the applicable collective bargaining agreement, policy, rule, and/or law.
