What’s fair for time off before and after a natural disaster?
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When a natural disaster strikes there is often a significant amount of uncertainty regarding how to handle absenteeism related to the natural disaster. Before hurricane Irma slammed South Florida, many residents chose to evacuate the area rather than stay to witness the disaster unfold. Even among those who chose not to evacuate, they were left contending with power failures, structural damage, and impassable roads covered in debris and flood waters. Whether they evacuated the area before the storm or decided to wait it out, many contractors were confused as to what the procedures would be for evacuation prior to a disaster and when they should return to work.

The City of Miami Beach issued letter to 100 of their employees’ stating “I write this letter to inform you of the City’s intent to terminate your employment with the city of Miami Beach for failing to show up to work and/or leaving your work assignment prior to being authorized to do so during our current civil emergency conditions, do to hurricane Irma, as you were required to do so,”

Although these employees have not been terminated as of yet, should they be?

We received several calls from our clients in Construction who had the same challenge with certain employees within their organizations.

We are fortunate that modern meteorologists can predict the approximate timing and possible severity of hurricanes and many other natural disasters.  What they cannot do is predict is how people react to the information they share.   The ironic part is they are advising everyone else to evacuate and bunker down when they are all at work.

Construction contracts typically have a clause in them called a Force Majeure. Force majeure is the term used to describe an exceptional event or circumstance which is unforeseeable, beyond the control of the parties and one which could not reasonably be avoided. (ie:   war, riots, fire, flood, hurricane, typhoon, earthquake, lightning, explosion, strikes, lockouts, slowdowns, prolonged shortage of energy supplies, and acts of state or governmental action prohibiting or impeding any party from performing its respective obligations under the contract). In Florida, the contractor will typically have a clause for delays due to inclement weather such as tropical storms and hurricanes to be defined as force majeure events.

The owner likely will want the contractor to demonstrate that the weather substantially differed from what normally would be expected in the locality of the work at that time, based on historic weather data. The contractor may want labor disputes to constitute force majeure, while the owner may consider that to be something within the contractor’s control.  This clause is typically an extension of agreed upon construction delay claim clauses.  Either way the Contractor is typically only covered if they have the supporting back up from the municipalities preventing them from filling their contract obligations. Public Private Partnership site provides sample Force Majeure contracts.

So, what does this mean for you, the employee, working for a contractor or not?

  1. Recognize all Business Owners lose money during Force Majeure situations and yes, many employees lose income during this time, not to mention expenses for everyone to prepare.
  2. Everyone has a myriad of emotions happening, even if they do not seem to show it.
  3. Only time reveals reality

What does only time reveals reality mean?  Our hurricane plan was written to follow the Broward county school closures.  So, that worked for the closing of our offices, but did not work for the reopening.  Why? Schools across the county remained closed for nearly two weeks after the natural disaster because the school facilities in the hardest hit areas of the county were used to care for people in need of those facilities, forcing the school district to postpone school for the entire county.

In the northern part of the county where our offices are located, we had minimal damage, flooding, or power loss after the storm. Our clients in the area who were operational needed us to be as well. Our employees continued to receive pay whether hourly or salary. In some cases, after communicating with the employee it was discovered that other than loss of power or damage to their homes from the storm, many did not have a justifiable reason not to return to work.  This disaster has many employers, including Florida Construction Connection (FLCC), reviewing and rewriting their disaster preparedness plans. In our case, we will remove the Broward County Schools clause while strengthening the definition of the conditions necessary to close the company leading up to and following a natural disaster, as well as establishing reasonable expectations for the use of PTO in the wake of a disaster.

Although the employees at FLCC work from the comfort of a climate controlled office, we still have equipment and offices that must be secured and protected during times of emergency.  Additionally, we recognize that each team member has property, vehicles, and family members that require care and protection during natural disasters. It is important to consider and balance the needs of the jobsite with the personal responsibilities and safety of our contractors when implementing a reasonable disaster preparedness plan.

Where is the happy medium and how do you find it?

  1. Consider the needs of the company and the employee to produce a disaster plan, but understand that this plan may be adjusted based on the circumstances of each disaster. Typically the plans are written by an Office Management/General Management or HR leader with input from safety, field operations, legal, financial and ownership. This could be 1-2 people in a small business or 10 or more in a larger working as a team.
  2. Both employer and employee need to serve one another. Communicating to find a compromise with time and helping each other ensure resources such as gas, water etc… are taken care of creates trust, shows commitment and calms emotions.
  3. Clearly communicate with your families what is realistic without sacrificing your job. You may have a spouse that wants you to evacuate prior to what upholds your obligation to your employer.  You make a choice between compromise or abandonment.  The same holds true on the return trip.  If you chose to leave without addressing the unknow of not knowing if you could get back in time then you chose to gamble with your job.

We hope you and your families were not hurt in anyway during the recent onset of natural disasters.   Emotionally, if you are still questioning, a good read is “Why” by Adam Hamilton. It is only 99 pages, but it can help shed some light on how to handle the issues you are facing.

Natural disasters are inevitable.  How we prepare and react is a choice.

Don’t hesitate to reach out if you need help with how to prepare and improve communications with your team.

 

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