This past week Metro Detroit was hit with a record rainstorm. After it was all said and done, many of the area freeways and streets were literally underwater and homes and basements were flooded with water and sewage.
It was also days before some of the affected roads were fully reopened. An understatement to say it was not a good day for the “D.”
What is also not good following a natural disaster like this is not understanding how employment laws may be implicated. For example, in Lane v. Pontiac Osteopathic Hosp., (2010), a case filed in the Eastern District of Michigan, an employee claimed it was medically necessary to clean the flooded basement because his mother had hepatitis and the stagnant water was a “breeding ground for the disease.”
In response, the the employee took off eight days of work without prior employer approval. He conceded that four of the days were “probably” not covered by the applicable employment statute (the Family Medical and Leave Act). But the employee claimed three days should have been covered because he was working to clean up flooding at his mother’s home.
The court, however, disagreed and concluded that the absence was not medically necessary. In this regard, plaintiff had previously obtained medical certification showing that he needed to assist his mother with meals and to transport her to doctor’s appointments. But that certification did not extend to the clean up activities due to the flooding and, therefore, was not covered by his statement of medical necessity.
The court also believed that the plaintiff employee’s leave did not qualify for FMLA leave because there was no showing that his mother’s basement had to be immediately cleaned for her basic medical, hygienic, or safety needs and that he had to do it because she could not. Accordingly, the court granted summary judgment on the employee’s FMLA interference claim.
Employers, especially small businesses, are often torn between two competing interests: Employers often want to help their employees to recover following a natural disaster. But this motivation can run up against the reality of running a business, e.g., business continuity and continued revenue.
But by planning ahead and recognizing the responsibilities under the applicable employment laws following a natural disaster, employers can help employees to understand what options exist and do not exist. An important step for employers to take is making sure to provide employees with information on how to report to work following an emergency. It is equally important, however, for employees to make sure to communicate with their employers and understand their options.
With this information, both employees and employers will be in a better position to respond when disaster strikes, while at the same time minimizing exposure to liability and helping employees to recover.