Can you require employees to come to work in a hurricane?

Not everything that's legal is a good idea.

With Hurricane Florence bearing down on the coasts of the Carolinas, the North Carolina Department of Labor has posted on its website that private sector employers in North Carolina can legally insist that their workers report to work, even in the event of a national emergency:

How an employer treats its employees during adverse weather conditions comes under the concept of "employment-at-will". This means that unless there is a specific law to protect employees or there is an employment contract providing otherwise, then an employer may treat its employees as it sees fit, and the employer can hire or discharge employees at the will of the employer for any reason or no reason at all.

Of course, the NCDOL enforces laws that actually exist. What makes good sense from an employee relations standpoint isn't within its jurisdiction.

Regardless of the law, employers should feel free to tell their non-emergency employees to stay home.

Do you really want your employees to come to work in this?

Moreover, it's possible that employers who force non-emergency employees to come in when it isn't safe may actually have some legal liability if an employee is injured. 

This morning, I asked Bill Principe, co-chair of our Workplace Safety Practice Group, about an employer's potential liability under OSHA. According to Bill, the Occupational Safety and Health Act would not apply if an employee is injured while commuting to or from the workplace (assuming no work is performed on the commute). However, if the employee is injured in a hurricane-related incident after arriving at work, the employer could arguably be in violation of OSHA's General Duty Clause.

According to Bill,

a General Duty Clause violation must allege that there is a recognized hazard that could reasonably lead to death or serious injury, and that there's a feasible means of abatement. . . . [O]nce you get to work, you would arguably be exposed to a recognized hazard and there's a feasible means of abatement -- don't come to work during a national emergency."

Also, since commuting time is normally not covered by OSHA or workers' compensation, I wonder whether an employee injured in a hurricane on the commute might be able to assert a tort claim for negligence against the employer who required the employee to come to work in those hazardous conditions.

Something to think about.

(By the way, don't worry about me, dear readers - although I'm in N.C., I'm about 5 hours inland, so all I have to worry about is a flooded basement and some big old oak trees crashing onto my house.)

Stay safe, everybody! 

Robin Shea has 30 years' experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act). 
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