Workplace Issues in the Aftermath of Sandy

A guest blog post by Robert Chadwick of Campbell Chadwick:

Hurricane Sandy has already had a significant impact upon American workplaces.  Employees have been mobilized either by their employers or federal or state uniformed services to participate in relief efforts.  Family members of victims are employed throughout the United States. Employers must be mindful of the legal challenges posed by these unique circumstances lest they become another victim of Sandy.

Volunteers:  The Fair Labor Standards Act (“FLSA”) allows persons to volunteer or donate humanitarian services, without compensation, to public agencies and religious, charitable and other non-profit organizations. Entitlement to wages, including minimum and overtime pay, however, becomes an issue when for-profit private sector employers either use their own employees to engage in humanitarian efforts directly or require their employees to provide services to non-profit organizations.

Family and Medical Leave:  The Family and Medical Leave Act (“FMLA”) specifies the conditions under which leave must be provided to an employee (1) to care for a spouse, son, daughter or parent with a serious physical or mental health condition, (2) because of any qualifying exigency arising out of the fact that the employee’s spouse, son, daughter, or parent is a covered military member on active duty (or has been notified of an impending call or order to active duty) in support of a contingency operation, or (3) because of a serious mental health condition that makes the employee unable to perform his or her job.  The FMLA covers employers with 50 or more employees and prescribes leave of up to 12 weeks.  Many states have similar laws which apply to smaller employers and which provide broader leave rights.

Bereavement Leave:  Although neither the FMLA nor federal law directly addresses bereavement leave, an employee may nevertheless be entitled to such leave under state law, a collective bargaining agreement or a legally binding personnel policy.  Some state laws also provide for leave from work for bereavement for an immediate family member who is a crime victim.

Military Leave:   The Uniformed Services Employment and Reemployment Rights Act (‘USERRA”) requires all employers to provide certain leave and reemployment rights and benefits to employees who serve in the uniformed services.  That an employee volunteered for military service does not affect entitlement to such rights and benefits.  State law also safeguards employees who perform state military service.

Mental Disabilities:  The Americans With Disabilities Act (“ADA”) mandates that the mental disabilities of qualified individuals be reasonably accommodated by private employers.  Enforcement guidance provided by the Equal Employment Opportunity Commission (“EEOC”) defines a mental impairment as including major depression and such anxiety disorders as post-traumatic stress disorder.  A mental impairment which substantially limits such major life activities as learning, thinking, concentrating, interacting with others, caring for oneself, speaking, performing manual tasks, or working can be a protected disability under the ADA.  The ADA applies to employers with 15 or more employees. Many states have similar laws protecting discrimination against disabled employees.