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Ensure compliance with ADA rules, prioritize safety with OSHA standards, manage worker shortage, and understand FLSA guidelines for disasters. Be prepared for emergencies both legally and operationally.
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Summer or Fall:DISASTER PREPARATION: ARE YOU READY FOR THESE EMPLOYMENT ISSUES?
1. Evacuation plans must include employees with disabilities.
Employers may not discriminate against qualified individuals on the basis of disability.
A disability is a physical or mental impairment that substantially limits that person’s ability to perform one or more major life activities.
An employer may not require an employee to undergo a medical examination or ask for any medical information that could disclose the existence of a disability.
Known disabilities • The ADA’s direct threat rule • Exclusion = Discrimination
Take a survey to determine needs of those with both known and undeclared disabilities
Employers should pre-screen employees who will perform hazardous work.
The Occupational Safety and Health Act (OSHA) requires “a workplace free from recognizable hazards” • Personal protective equipment (PPE) against known workplace hazards • Bloodborne Pathogens Standard requires written Exposure Control Plan
National Institute for Occupational Safety and Health (CDC) Pre-exposure screening for baseline
3. Each governmental unit should decide which services are essential in different kinds of emergencies because . . . .
They Will Have to Maintain Essential Services Despite Worker Shortage
Take an ADA-compliant disability survey about employees’ ability to come to work that is not limited to disability-based reasons.
ADA-COMPLIANT PRE-PANDEMIC EMPLOYEE SURVEY • Directions: Answer “yes” to the whole question without specifying the factor that applies to you. Simply check “yes” or “no” at the bottom of the page. • In the event of a pandemic, would you be unable to come to work because of any one of the following reasons: • If schools or day-care centers were closed, you would need to care for a child; • If other services were unavailable, you would need to care for other dependents; • If public transport were sporadic or unavailable, you would be unable to travel to work; and/or; • If you or a member of your household fall into one of the categories identified by the CDC as being at high risk for serious complications from the pandemic influenza virus, you would be advised by public health authorities not to come to work (e.g., pregnant women; persons with compromised immune systems due to cancer, HIV, history of organ transplant or other medical conditions; persons less than 65 years of age with underlying chronic conditions; or persons over 65). • Answer: YES______ NO_______
Responding to Worker Shortage Reassignment of Current Employees
Responding to Worker Shortage Temporary Employees v. Independent Contractors
Responding to Worker Shortage Volunteers • Citizen volunteers • Employee volunteers • Mutual aid agreements • Retirees
Overtime • Overtime may be required • No limit on number of hours • But the rate is 1 ½ times the regular rate for every hour over 40 in a work week.
Comp Time • 1 ½ hours paid time off for every hour over 40 in a work week • Accrual limits remain in place: • 240 • 480
Exempt Employees Performing Nonexempt Work In Emergencies Occurrences beyond the control of the employer • Prevent harm to other employees • Maintain operations • Prevent damage to employer’s property
Exempt Employees Performing Nonexempt Work • First responder work • Work on equipment or vehicles needed for emergency response • Driving equipment or vehicles needed to clear roads or to clear other areas of a dangerous debris pile-up • Work done in water treatment plant • Procurement or accounts payable work related to supplies needed for emergency response
On-Call Time “Engaged to wait” vs. “Waiting to be engaged”
FEMA Will Reimburse Some Overtime Costs for Emergency Work • Stafford Act Public Assistance Program Grant • President must declare disaster area • FEMA must designate area as eligible • FEMA Public Assistance Program and Policy Guide at p. 22, available at https://www.fema.gov/media-library-data/1525468328389-4a038bbef9081cd7dfe7538e7751aa9c/PAPPG_3.1_508_FINAL_5-4-2018.pdf
Not Eligible for FEMA Reimbursement • Straight-time wages, salaries and benefits of permanent employees.
Eligible for FEMA Reimbursement • Overtime associated with the performance of emergency work by nonexempt permanent employees
Eligible for FEMA Reimbursement • Overtime for emergency work performed by exempt permanent employees under certain conditions • Written policy required • Payment cannot be contingent on FEMA reimbursement
Eligible for FEMA Reimbursement • Benefits costs dependent on hours worked • Retirement contributions • FICA taxes • Vacation and sick leave accrual
Eligible for FEMA Reimbursement • Costs of outside workers and backfill staff • Independent contractors • Temporary workers • Mutual aid if in accordance with pre-existing agreement
Straight-Times Wages for Permanent Work May Eligible for FEMA Reimbursement Permanent employees engaged in the repair of: • roads and bridges • water controls • buildings and equipment • public utilities • parks and recreational facilities damaged as a direct result of the emergency.
6. Sometimes Employers Have to Pay Employees Who Don’t Work, Sometimes They Don’t
Nonexempt employees do not have to be paid for time not worked.
Exempt employees do not have to be paid for time not worked unless the employer closes the workplace for part of the week.
When an employer pays exempt employees their stated salary and deducts an equivalent amount of leave from their employer-created accrued leave benefit, it satisfies the FLSA.
When an employer closes the workplace due to emergency conditions, it can apply any accrued paid leave to cover an exempt employee’s salary. If the employee does not have any accrued paid leave and the employer has closed the workplace, the employer must pay the employee full salary for the week.
7. Employers That Do Not Have Payroll Backup Court a New and Different Disaster • Record time with normal technology running • Record time with technology disrupted • No recordkeeping: employee’s report is final • Payroll redundancy • Info stored off-site • Software stored off-site
Americans with Disabilities Act Exemptions • Undue Hardship
Religious Exemptions under Title VII No philosophical or moral exemption
Religious Exemptions under Title VII No exemption based on personal desire
Religious beliefs include “moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of traditional religious views.” They need not be “acceptable, logical, consistent, or comprehensible to others.”
But there are limits . . . . “Even though the ancient Egyptians worshipped cats, a belief in the deeply spiritual effects of eating Kozy Kitten People/Cat Food is not a religious belief, and the plaintiff’s consumption of the cat food was not therefore a religious observance.” Brown v. Pena, 441 F.Supp.1382 (S.D. Fla. 1977).
8. Some Monitoring of Employee Health Is Allowed During a Public Health Emergency Normal Flu v. Pandemic Flu
