As South Florida prepares for the hurricane coming our way, many people want or need time off to start preparing their homes. And as the week goes on, the schools may close before our workplaces shut leaving us with no childcare. It's only natural to wonder what the law is about employers requiring we go to work. I wanted to repost an article I wrote in 2008 for The Miami Herald that may help answer questions on employees' minds.
Storm's here: must I go to work?
Each hurricane season workers have to juggle their jobs with preparing for a storm. But many have three big questions about work: Do I have to go? Will I be paid? What do I do with my kids? The Miami Herald spoke to a few local labor lawyers to get their input.
Q: I need to miss work to prepare for the hurricane . Can I be fired? Will I be paid?
A: Yes, you can be fired. Florida is an employment-at-will state, which means that an employee can legally be terminated for any reason other than discrimination or actions like whistle blowing.
Getting paid will depend on your job classification. Hourly workers are paid only for time worked, so employers aren't legally obligated to pay you anything if you're not at work. If you are a salaried employee (and don't get overtime), an employer can force you to use your vacation time.
Q: My boss says I have to work during the storm. Can I be fired if I refuse?
A: Yes. Again, because Florida is an employment-at-will state. Still, while several lawyers say they can't think of a law that makes it illegal to force employers to work during a storm, they often advise common sense on the part of employers during a hurricane . A good rule of thumb is if the people in charge of the business don't want to be out on the roads, no employee should have to be.
Employers should post a hurricane work policy so everyone gets treated the same. If your employer isn't doing that, ask for a policy. Mark Cheskin, a labor lawyer at Hogan Lovells in Miami who represents employers, said he would tell employees to approach the boss and ask what the policy is to make clear you understand your workplace's rules. Cheskin said employers should make the rules clear for all employees.
Q: Can I be forced to use vacation days or personal days during a hurricane , even if the business is closed?
A: Yes, if you are a salaried employee (and don't get overtime) and your place of business is closed because of the hurricane for less than a week. According to the new Department of Labor opinion, employers can ask workers to use vacation time, which can include personal days, even if the workplace is closed. The only good news: According to the new opinion, if you have run out of vacation time, or won't have enough left to make up the time missed, then your employee has to pay you for the entire week.
Q: School is closed, most day-care centers are closed, and I don't have a place to put my kids. Can I bring them with me to work?
A: Your boss isn't obligated to provide room for your children. In fact, labor lawyer Cheskin thinks he would tell his clients that's not a great idea.
"I'd probably advise my clients not to do it, we don't want to have that kind of liability," said Cheskin. But, he says, that's "completely up to the employer".
Q: My workplace is closed before the storm and says it will reopen afterward. Will I be paid?
A: Again, it depends on whether you are a hourly or salaried worker. Companies aren't obligated to pay hourly workers, although after last year's storms, several did. In most cases, employers are obligated to pay salaried workers a full week's salary, even if they are closed, but they can make you use your vacation or personal days.
Many labor lawyers, even those who represent employers, say that companies that follow the letter of the law risk seriously damaging employee morale.
While it often depends on the size of the company, if an employer can afford to pay the workers, it's probably best to do so, says Michael Casey, a labor lawyer with Duane Morris in Miami.
"It's more difficult for small employers to pay people who don't work a couple of days. Larger companies are better positioned to absorb those extra costs," he said, but added: "Most employers want to treat people fairly and help them. This would be a good time to do that."