Employees who don’t report to work during dangerous hurricane conditions could be fired under a North Carolina policy.
Labor attorneys, however, say employers who fire workers for not showing up in hazardous weather could be violating state and federal OSHA safety laws.
Gov. Roy Cooper’s emergency declaration and warnings to stay off the road as Hurricane Florence approaches don’t overrule an employer’s rights under state law to fire a worker for not showing up or leaving without permission, the state Department of Labor’s hazardous weather guidance said.
Although Cooper, a Democrat, is the governor, an independently elected commissioner oversees the Labor Department. Cherie Berry, a Republican, has headed the department since 2001.
Mary Katherine Revels, public information officer for the department, told Bloomberg Environment that it stands behind the guidance.
“Even if the governor declares a state of emergency, employers can require employees to report to work,” Revels said.
Attorneys representing businesses and workers in North Carolina labor law cases told Bloomberg Environment that an employer dismissing a worker for failing to show up or leaving early during a declared emergency could face legal repercussions.
“If a state of emergency is declared, and citizens are asked not to drive on public roadways in certain areas, there is an argument that an employer who dismisses an employee for failing to come to work under these conditions may have violated North Carolina public policy,” employer-side attorneys Travis Vance and David Klass of Fisher & Phillips LLP’s Charlotte, N.C., office told Bloomberg Environment in a statement.
A business could be in violation of the federal Occupational Safety and Health Administration’s general duty clause and its North Carolina counterpart requiring employers to provide safe workplaces, Josh Van Kampen of Van Kampen Law PC in Charlotte, who typically represents workers, told Bloomberg Environment.
“I’d certainly take the case,” Van Kampen said.
‘No Reason at All’
The labor department guidance says that because North Carolina is an “at-will” employment state, an “employer can hire or discharge employees at the will of the employer for any reason or no reason at all.”
The state advises that an employer can “simply inform its employees that they must report to work whenever the business is open regardless of the weather conditions or road conditions.”
Workers who want to avoid being fired for not working during a hurricane can ask their employer to create a written “adverse weather policy” specifying when they won’t be expected to be on the job, the guidance said.