Texas employers may not discharge or otherwise 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. Labor Code § 22.002.
An emergency evacuation order means an official statement issued by a governmental entity recommending the evacuation of all or part of the population of an area stricken or threatened with a disaster. Tex. Labor Code § 22.001(2).
You can find a list of emergency evacuation orders related to Hurricane Harvey here.
An employer who violates the statute will be responsible for any lost wages or employer-provided benefits incurred by the employee and will have to reinstate the employee in the same or equivalent position of employment. Tex. Labor Code § 22.003.
There is an exemption for emergency services personnel (fire fighters, police officers and other peace officers, emergency medical technicians, and other individuals who are required, in the course and scope of their employment, to provide services for the benefit of the general public during emergency situations) if the employer provides adequate emergency shelter for such employees. Tex. Labor Code § 22.004.
Because the statute covers “recommended” evacuation, it is unclear whether it covers both “mandatory” and “voluntary” evacuations orders. To be safe, employers should treat those the same. The statute is also ambiguous as to whose evacuation orders are covered and simply states that it applies to orders issued by any “authority of this state.”
BOTTOM LINE: Before discharging, demoting, disciplining, or otherwise discriminating against an employee for participating in the evacuation related to Hurricane Harvey, employers should gather specific information related to that employee’s reasons for absence and determine whether the employee falls within the statute’s protections. Meanwhile, the evacuated employees’ pay should be determined in accordance with the Fair Labor Standards Act (FLSA) rules.
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