Employee Leave Eligibility and Natural Disasters

The aftermath of a hurricane raises questions about employers’ obligations under such laws as the Family and Medical Leave Act and the Americans with Disabilities Act when a natural disaster is involved. The FMLA doesn’t require employers to give their workers time off to attend to personal matters arising out of a natural disaster — cleaning a flood-damaged basement, salvaging belongings or searching for missing relatives, for instance. 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, rendering the worker unable to perform their job. FMLA is in effect as well if an employee is required to care for a spouse, child or parent with a serious health condition affected by the natural disaster. Here are two examples: A hurricane causes your employee’s blood pressure to soar, rendering him unable to perform his job. If medical certification supports the need for leave, then FMLA leave kicks in. A worker’s family member develops a serious health condition related to the natural disaster. Say an employee’s parent suffers from diabetes and the power goes out in the parent’s home. The employee may need to help administer the parent’s medication, which must be refrigerated. Again, that may trigger a mandated leave. While employees who are physically or emotionally injured as a result of a natural disaster may be entitled to FMLA leave, if the impairments rise to the level of disability, then potential employer obligations kick in under the ADA. Sometimes, a medical condition may arise several weeks or even months after the natural disaster hits. You need to be vigilant in watching for signs of an employee scarred by a natural disaster. If you’re thinking post-traumatic stress disorder, you’re right — it can arise from a natural disaster. You’d have to consider FMLA and ADA obligations: You may need to provide FMLA leave as well as reasonable accommodations for employees — an option to telecommute or work from home or provide leave so they can attend counseling or receive medical treatment. You need to obtain as much information as possible from the employee to determine whether the absence qualifies as protected leave. When in doubt, provide the requisite FMLA paperwork and allow your worker to provide the necessary information to support the FMLA leave. Also, make sure that medical certification is sufficient to cover the absence. Where more information is required, employers must follow up with a worker to get information necessary to designate the absence as FMLA leave. You have a right to seek a second opinion to ensure FMLA leave is appropriate. Finally, keep in mind this is just a general introduction and summary to a complex series of laws and regulations. Call us to discuss your particular situation.

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