In Florida, your employer can fire you if you miss work due to an evacuation order.
Employment in Florida is “at-will.” This means that an employer can fire an employee for almost any reason, even a bad reason, so long as that reason does not violate the law. Examples of unlawful reasons include workplace discrimination, breach of contract, or retaliation for reporting a workplace safety violation. Some states, including Texas, prohibit employers from firing employees who miss work to comply with an official evacuation order. Florida, unfortunately, does not have such a law, despite the clear need for one in a state so vulnerable to major storms.
Despite this lack of explicit protection, Florida employees who evacuate could try to claim their termination violates the Florida Whistleblower Act. The Act prohibits an employer from terminating an employee for refusing to participate in “any policy, or practice of the employer which is in violation of a law, rule, or regulation.” In Florida, when the governor orders an evacuation, it has the force of law. Thus, employees forced to report to work despite an evacuation order could argue that their employer asked them to violate the law.
One Florida court has rejected such a claim, however. In that case, a nurse did not report to work at a nursing home due to an evacuation order. The court reasoned that, because it is a crime to abandon nursing home patients, it would be absurd to conclude that the employer’s demand that the nurse report to work violated any law. Those unique facts might mean that this case law would not apply in different circumstances. But, without other published court opinions on this issue, protection under the Florida Whistleblower Act is a long shot for Florida evacuees.
If you are fired for missing work due to the storm, you should apply for unemployment compensation.
Unemployment compensation provides temporary financial assistance to workers who lose their jobs through no fault of their own. In Florida, employees who are fired for misconduct connected with work do not qualify for unemployment benefits. A Florida court has held that an employee’s failure to report to work without good cause after the employer expressly directed him to do so as a result of Hurricane Ivan constituted misconduct connected with work.
That case, however, does not directly address whether an evacuation order constitutes “good cause” to refuse to report to work. Moreover, an inability to comply with an employer’s orders due to circumstances beyond the employee’s control does not constitute misconduct, nor does a good faith error in judgment. Bottom line, employees who are fired for not reporting to work during the hurricane should seek unemployment compensation. You can apply online at the Florida Department of Economic Opportunity web site. It costs nothing apply, and you are entitled to an appeal if you are denied.
Federal law may protect you if you refuse to work in unsafe conditions.
Under the Occupational Health and Safety Act (OSHA), you cannot be fired for refusing to work if the following conditions are met: 1) you asked your employer to eliminate the danger and the employer refused to do so; 2) you have a reasonable, good-faith belief that working would be unsafe; and 3) there isn’t enough time, due to the urgency of the hazard, to get it corrected through regular enforcement channels. Additionally, OSHA’s whistleblower protection prohibits employers from retaliating against an employee for raising a safety complaint. You must, however, file a complaint with OSHA within 30 days of the retaliation.
Under the National Labor Relations Act, an employee who raises safety concerns may be engaged in protected “concerted activity.” The Act prohibits employers from retaliating against an employees who raise issues with working conditions, even in nonunion workplaces, if the complaint is more than a mere personal grievance. For example, in a Puerto Rico case, an employer had to pay $50,000 in back wages to workers who ceased work to seek shelter from a thunderstorm, and refused to return to work, citing safety concerns due to exposed electrical cables at the site. Information on how to file a complaint is available on the National Labor Relations Board web site.
You May Be Protected If You Request Leave to Care for a Sick Family Member.
Evacuation orders may leave people with no one to care for loved ones with serious medical conditions. The Family and Medical Leave Act (FMLA) prohibits employers from firing employees who take leave due to their own or a close family member’s serious medical condition. Qualifying employees are entitled to up to 12 weeks of unpaid leave without fear of termination. To be eligible for the Act’s protections, your employer must have 50 or more employees, you must have worked there for at least 12 months, and for at least 1,250 hours during the 12 months before you request leave. You must also give notice to your employer that you are requesting FMLA leave. More information on the Act, how it applies, and how to file a complaint are available online and in this U.S. Department of Labor employee guide.
If your workplace is closed, your right to pay depends primarily on whether you are salaried or an hourly employee.
If your workplace is closed due to the storm, you may not fear being fired, but may face concerns about your next paycheck. This turns on a number of issues, including whether you are paid a salary (are “exempt” from overtime regulations) or whether you are paid hourly (are “non-exempt”). This blog post offers a good explanation of these issues. The U.S. Department of Labor Wage and Hour Division provides resources on this issue as well, including information on how to file a complaint.
Legal resources are available.
This is not an exhaustive list of all the workplace protections that may apply to you as you deal with Hurricane Irma. (For example, if you are a military reservist called to active duty, you have special protections under the Uniformed Services Employment and Reemployment Rights Act (USERRA), or if you are injured during the storm, you may be entitled to the protections of the Americans With Disabilities Act/).
I wrote this post because I am a Florida-licensed lawyer, I grew up in Florida and my extended family lives there, and I want to help Floridians in any way that I can as they face Hurricane Irma and its aftermath. I am not alone in this. The Florida Bar Association has put together a hurricane resources page, so has the American Bar Association and the U.S. Department of Labor. A list of Florida legal aid services is available here. Please avail yourself of these resources, know your rights, and, above all, stay safe.