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Common Questions about Disaster Relief

Common questions and issues arising from a disaster are:

 

  •  What unemployment benefits are available for persons whose employment is interrupted or lost due to a disaster?
     
  •  Can health benefits be continued after an employment loss has occurred?
     
  •  Can my employer fire me because a natural disaster has occurred?
     
  •  What obligations does my employer have to pay my salary if I cannot work because of the disaster?
     
  •  Is leave available if I or a family member becomes ill as a result of the disaster or its aftermath?
     
  •  How do I get my paycheck?

Summary of the Law

Unemployment Compensation

 

A person may be entitled to receive unemployment compensation benefits if he or she becomes unemployed as a result of a disaster or other natural disaster (e.g., because his or her employer’s business was closed or destroyed, the person’s employment was terminated, his or her house or car was destroyed or the person is no longer able to get work). If a disaster victim is not eligible for unemployment compensation, he or she may be entitled to federal disaster unemployment assistance.

 

To be eligible for unemployment compensation under the Texas Unemployment Compensation Act (Texas Labor Code Title 4), an individual must meet all of the following qualifying requirements: (1) The individual must have earned sufficient wages to qualify for benefits in the “base period,” which consists of the four consecutive completed calendar quarters, prescribed by the Texas Workforce Commission, in the five completed calendar quarters before the claim is filed. (2) The person must be unemployed or partially unemployed through no fault of his or her own and must not have voluntarily terminated employment. (3) The individual must be physically able and available to work. (4) The individual must be actively seeking work.

 

Continuation of Group Health Coverage

 

Due to a disaster, some individuals may lose their employer-provided group health plan coverage as a result of either a voluntary or an involuntary termination or a reduction in work hours that would render the employee unable to continue his or her coverage as an active employee. An employer may be required to extend COBRA continuation coverage to such an individual and his or her dependents (“Qualified Beneficiaries”) previously covered under the employer’s group health plan. COBRA coverage is not available if the termination was for gross misconduct.

 

If applicable, COBRA requires an employer to extend to Qualified Beneficiaries the right to continue their health coverage under the same group health plan under which the beneficiaries were covered prior to their coverage loss.6 26 U.S.C. § 4980B(f)(2)(A) (2000). Group health plans include but are not limited to medical, dental, and vision plans. See 26 C.F.R. § 54.4980B-2, Q&A-1. Each individual Qualified Beneficiary may make a separate election with respect to coverage. See id. at §54.4980B-6, Q&A-6. For example, if an employee previously covered a spouse and a dependent child through family coverage under an employer-provided group health plan, either the spouse or the dependent child could separately elect COBRA continuation coverage under a single, rather than family, plan while the remaining members of the family waived coverage.

 

Generally, a Qualified Beneficiary may continue his or her coverage for up to 18 months. 26 U.S.C. § 4980B(f)(2)(B)(i). However, COBRA coverage can be very costly. An employer may charge up to 102 percent of the actual cost of providing the coverage to a similarly situated active employee (not just the contribution for coverage that the employee paid while actively employed). Id. at § 4980B(f)(2)(C). COBRA continuation coverage is not available in all situations. For example, COBRA generally only applies to private sector employers with at least 20 employees, governmental employers, and certain employee organizations. 26 C.F.R. § 54.4980B-2, Q&A-4. Further, an employer is not required to offer COBRA coverage if it ceases providing any group health plan to its active employees. 26 U.S.C. § 4980B(f)(2)(B)(ii). For example, if an employer closes operations entirely and no longer offers any group health plans, a Qualified Beneficiary has no rights under COBRA to continuation coverage.

 

An individual who is eligible for COBRA coverage and wishes to elect COBRA coverage may want to contact the employer providing the group health plan coverage.

 

Employer’s Wage Payment Obligations

 

Under the federal Fair Labor Standards Act, 29 U.S.C. §§ 201 et seq., employees who are not exempt from the minimum wage and overtime provisions of the statute need only be paid for time actually worked. Employees who are exempt, however, must be paid their full salary if the business shuts down for less than a full work week or if the employer does not have work available for the employee for the full work week. If the employer makes improper deductions from pay for time not worked, the employee’s exempt status may be lost. When the business is open and work is available, deductions from an exempt employee’s salary may be made if the employee is absent from work for one or more full days for personal reasons. In addition, a full day’s absence may be deducted if it occurred because of sickness or disability, as long as the deductions are made pursuant to a bona fide sick or disability leave plan, policy, or practice. See 29 C.F.R. § 541.602. 

 

The Texas Payday Act requires employers to pay exempt employees at least once a month and non-exempt employees at least twice a month on the paydays designated by the employer. Tex. Lab. Code § 61.011. Wages may be paid by: (1) delivering them to the employee, or a person designated by the employee in writing, at the employee’s regular place of employment, during regular work hours, or at a place and time agreed by employer and employee; (2) sending them to the employee, or a person designated by the employee in writing, by registered mail, to be received no later than payday; or (3) delivering them to the employee by any reasonable means authorized by the employee in writing. Employers with a direct deposit plan may also pay wages by direct deposit. Id.§ 61.017. Employers whose employees may have been displaced by a natural disaster should take steps to ensure that checks are delivered in a manner that ensures receipt by the employee.

 

An employee who is discharged from employment must be paid in full no later than the sixth (6th) day after the date of discharge. Employees who are not discharged but leave employment voluntarily or for other reasons must be paid in full no later than the next regularly scheduled payday. Tex. Lab. Code § 61.014.

 

Under certain circumstances, employees who lose employment as a result of a plant closing or mass layoff are entitled to 60 days advance notice under the federal Worker Adjustment and Retraining Notification (WARN) Act, 29 U.S.C. 2101 et seq. The WARN Act notice requirement applies only to employers with at least 100 employees. The employer must give written notice to the bargaining representative of affected union employees and to unrepresented individual workers who may reasonably be expected to experience an employment loss. However, when the plant closing or mass layoff is the direct result of a natural disaster, such as a flood, earthquake, drought or storm, the employer is required only to give as much notice as is practicable.

 

Prohibited Employment Discrimination

 

Texas is known as an employment-at-will state. Unless an employee is hired under a written contract for a specific term, the employer and the employee are free to terminate the employment relationship at any time, for any reason. Certain state and federal laws, however, prohibit discrimination in hiring, discipline, discharge and other terms and conditions of employment on the basis of an employee’s race, color, national origin, sex, pregnancy, religion, disability or genetic information. 

 

Texas law also prohibits discrimination for participation in an emergency evacuation. An employer may not discharge or discriminate against an employee who leaves the employee’s place of employment to participate in a general public evacuation ordered under an emergency evacuation order. Tex. Lab. Code § 22.002. Emergency services personnel (including fire fighters, police officers, emergency medical technicians and other individuals who are required to provide services for the benefit of the general public in emergency situations) are exempt from this provision. Tex. Lab. Code § 22.004.

 

In addition, the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA), 38 U.S.C. §§ 4301-4333, makes it unlawful for an employer to deny initial employment, reemployment, promotion, or any benefit of employment to a person who is obligated to perform in a uniformed service, including the Reserves and National Guard. This includes a call to active duty as a result of a national emergency. 

 

Unpaid Leave Entitlement

 

In addition to paid leave that may be available under an employer’s vacation or sick leave policy, the federal Family and Medical Leave Act (FMLA) requires covered employers to provide up to 12 weeks of unpaid, job-protected leave to eligible employees for certain family and medical reasons. See 29 U.S.C. §§ 2601 et seq.; 29 C.F.R. Part 825. Leave is available in part to cover an employee’s own serious health condition that renders the employee unable to perform the employee’s job, and to care for the employee's spouse, son or daughter, or parent who has a serious health condition. Employees are eligible if they have worked for their employer for at least one year, and for 1,250 hours over the previous 12 months, and if their employer has at least 50  employees within 75 miles. The FMLA permits employees to take leave on an intermittent basis or to work a reduced schedule under certain circumstances. For the duration of FMLA leave, the employer must maintain the employee's health coverage under any group health plan.

 

Pursuant to the statute, substitution of paid leave is allowed. 29 U.S.C. § 2612 (d)(2). Employees may take, or employers may require employees to use paid vacation, personal, family, or medical sick leave concurrently with FMLA. However, the Department of Labor updated the regulations under the FMLA in 2008 which now restrict the substitution of paid leave. Under the new 29 C.F.R. 825.207, employers can require employees to meet all of the normal requirements of paid leave policies before permitting substitution.  For example, if a policy requires that vacation be taken in full day increments, an employer can deny substitution for an employee’s one-half day FMLA leave. Similarly, if vacation time cannot be taken during a particular month, substitution could be denied during that time period. 

Employment Obligations

Employer’s Wage Payment Obligations

 

Under the federal Fair Labor Standards Act, 29 U.S.C. §§ 201 et seq., employees who are not exempt from the minimum wage and overtime provisions of the statute need only be paid for time actually worked. Employees who are exempt, however, must be paid their full salary if the business shuts down for less than a full work week or if the employer does not have work available for the employee for the full work week. If the employer makes improper deductions from pay for time not worked, the employee’s exempt status may be lost. When the business is open and work is available, deductions from an exempt employee’s salary may be made if the employee is absent from work for one or more full days for personal reasons. In addition, a full day’s absence may be deducted if it occurred because of sickness or disability, as long as the deductions are made pursuant to a bona fide sick or disability leave plan, policy, or practice. See 29 C.F.R. § 541.602. 

 

The Texas Payday Act requires employers to pay exempt employees at least once a month and non-exempt employees at least twice a month on the paydays designated by the employer. Tex. Lab. Code § 61.011. Wages may be paid by: (1) delivering them to the employee, or a person designated by the employee in writing, at the employee’s regular place of employment, during regular work hours, or at a place and time agreed by employer and employee; (2) sending them to the employee, or a person designated by the employee in writing, by registered mail, to be received no later than payday; or (3) delivering them to the employee by any reasonable means authorized by the employee in writing. Employers with a direct deposit plan may also pay wages by direct deposit. Id.§ 61.017. Employers whose employees may have been displaced by a natural disaster should take steps to ensure that checks are delivered in a manner that ensures receipt by the employee.

 

An employee who is discharged from employment must be paid in full no later than the sixth (6th) day after the date of discharge. Employees who are not discharged but leave employment voluntarily or for other reasons must be paid in full no later than the next regularly scheduled payday. Tex. Lab. Code § 61.014.

 

Under certain circumstances, employees who lose employment as a result of a plant closing or mass layoff are entitled to 60 days advance notice under the federal Worker Adjustment and Retraining Notification (WARN) Act, 29 U.S.C. 2101 et seq. The WARN Act notice requirement applies only to employers with at least 100 employees. The employer must give written notice to the bargaining representative of affected union employees and to unrepresented individual workers who may reasonably be expected to experience an employment loss. However, when the plant closing or mass layoff is the direct result of a natural disaster, such as a flood, earthquake, drought or storm, the employer is required only to give as much notice as is practicable.

 

Prohibited Employment Discrimination

 

Texas is known as an employment-at-will state. Unless an employee is hired under a written contract for a specific term, the employer and the employee are free to terminate the employment relationship at any time, for any reason. Certain state and federal laws, however, prohibit discrimination in hiring, discipline, discharge and other terms and conditions of employment on the basis of an employee’s race, color, national origin, sex, pregnancy, religion, disability or genetic information. 

 

Texas law also prohibits discrimination for participation in an emergency evacuation. An employer may not discharge or discriminate against an employee who leaves the employee’s place of employment to participate in a general public evacuation ordered under an emergency evacuation order. Tex. Lab. Code § 22.002. Emergency services personnel (including fire fighters, police officers, emergency medical technicians and other individuals who are required to provide services for the benefit of the general public in emergency situations) are exempt from this provision. Tex. Lab. Code § 22.004.

 

In addition, the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA), 38 U.S.C. §§ 4301-4333, makes it unlawful for an employer to deny initial employment, reemployment, promotion, or any benefit of employment to a person who is obligated to perform in a uniformed service, including the Reserves and National Guard. This includes a call to active duty as a result of a national emergency. 

 

Unpaid Leave Entitlement

 

In addition to paid leave that may be available under an employer’s vacation or sick leave policy, the federal Family and Medical Leave Act (FMLA) requires covered employers to provide up to 12 weeks of unpaid, job-protected leave to eligible employees for certain family and medical reasons. See 29 U.S.C. §§ 2601 et seq.; 29 C.F.R. Part 825. Leave is available in part to cover an employee’s own serious health condition that renders the employee unable to perform the employee’s job, and to care for the employee's spouse, son or daughter, or parent who has a serious health condition. Employees are eligible if they have worked for their employer for at least one year, and for 1,250 hours over the previous 12 months, and if their employer has at least 50  employees within 75 miles. The FMLA permits employees to take leave on an intermittent basis or to work a reduced schedule under certain circumstances. For the duration of FMLA leave, the employer must maintain the employee's health coverage under any group health plan.

 

Pursuant to the statute, substitution of paid leave is allowed. 29 U.S.C. § 2612 (d)(2). Employees may take, or employers may require employees to use paid vacation, personal, family, or medical sick leave concurrently with FMLA. However, the Department of Labor updated the regulations under the FMLA in 2008 which now restrict the substitution of paid leave. Under the new 29 C.F.R. 825.207, employers can require employees to meet all of the normal requirements of paid leave policies before permitting substitution.  For example, if a policy requires that vacation be taken in full day increments, an employer can deny substitution for an employee’s one-half day FMLA leave. Similarly, if vacation time cannot be taken during a particular month, substitution could be denied during that time period.

 

Regulatory Agency Directives

 

The U.S. Department of Labor in coordination with FEMA provides funds to state unemployment insurance agencies for payment of Disaster Unemployment Assistance (DUA) benefits. Accordingly, the Texas Workforce Commission (TWC) administers DUA benefits as a result of major disasters declared by the President to individuals whose employment or self-employment was lost or interrupted due to the disaster. In the event of a disaster, TWC will publish announcements about the availability of DUA benefits. Unemployed disaster victims, who are not eligible for regular unemployment insurance (UI), should apply for unemployment benefits as soon as possible since there are deadlines as well as waiting periods for receipt of benefits. 

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