Thank you to Winston & Strawn LLP for updating the below content with North Carolina information.
6.1 – Overview
This section provides practical advice for assisting persons who have temporarily or permanently lost employment or are facing other employment-related issues as a result of a disaster.
6.2 – Most Common Issues/Questions
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?
6.3 – Summary of the Law
6.3.1 – 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 to 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 North Carolina Employment Security Law (Chapter 96 of the North Carolina General Statutes), 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 Employment Security Commission, in the five completed calendar quarters before the claim is filed. (2) The individual 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 able and available to work, and actively seeking work.
6.3.2 – 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 (The death of the covered employee would also be a qualifying event that would trigger an employer’s obligations under the Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”) (26 U.S.C. § 4980B(f)(3) (2000)). 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 (26 U.S.C. § 4980B(f)(2)(A) (2000)). If the employer no longer offers the same health plan under which the Qualified Beneficiary was covered, the Qualified Beneficiary may still be able to elect coverage under another group health plan maintained by the employer. 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 U.S.C. § 4980B(d); 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.
Employers are generally required to send a notice regarding COBRA rights to the last known mailing address of the Qualified Beneficiary. Therefore, those who have been dislocated by the disaster may not promptly receive notice from their employers regarding COBRA continuation coverage. Qualified Beneficiaries only have 60 days in which to elect COBRA coverage from the later of the date of the COBRA notice or the loss of coverage (Id. at § 4980B(f)(5)). For further information, see “An Employee’s Guide to Health Benefits Under COBRA,” available at: https://www.dol.gov/sites/default/files/ebsa/about-ebsa/our-activities/resource-center/publications/an-employees-guide-to-health-benefits-under-cobra.pdf.
6.3.3 – 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. For further information, see “Employee Rights Under the Fair Labor Standards Act” available at: http://www.dol.gov/whd/regs/compliance/posters/minwagep.pdf.
The North Carolina Wage and Hour Act permits employers to pay employees on a regular pay day. Pay periods may be daily, weekly, bi-weekly, semi-monthly, or monthly. Wages based upon bonuses, commissions, or other forms of calculation may be paid as infrequently as annually if prescribed in advance (N.C.G.S. § 95-25.6). Employers must notify employees, in writing or through a posted notice maintained in a place accessible to its employees, at least 24 hours prior to any changes in promised wages.
The North Carolina Wage and Hour Act does not require a specific form of payment. Therefore, an employer may select any legal form of payment, so long as payment is made in full on the designated payday, subject to authorized deductions and legal withholdings. Acceptable forms of payment include cash, money order, negotiable checks, and direct deposit (13 NCAC 12.0309).
Employees whose employment is discontinued for any reason must be paid all wages due on or before the next regular payday either through the regular pay channels or by mail if requested by the employee. Wages based on bonuses, commissions or other forms of calculation must be paid on the first regular payday after the amount becomes calculable when a separation occurs. Those wages may not be forfeited unless the employee has been notified of the employer’s policy or practice that results in forfeiture (N.C.G.S.A. § 95-25.7).
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 union representative of affected employees (if applicable) and to each affected employee not represented by a union 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.
6.3.4 – Prohibited Employment Discrimination
North Carolina 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, with or without prior notice. 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, age or genetic information. For further information, see “Equal Employment Opportunity is the Law,” available at: http://www.eeoc.gov/employers/upload/poster_screen_reader_optimized.pdf.
In addition, the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA), 38 U.S.C. §§ 4301-4335, 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. For further information, see “Your Rights Under USERRA” available at: http://www.dol.gov/vets/programs/userra/userra_private.pdf.
Military service is also protected under North Carolina law (N.C.G.S. § 127B-11 et seq). Employers may not discriminate against or terminate an employee because of his or her military service. In addition, no member of the North Carolina National Guard may be forced to use or exhaust his or her vacation or other accrued leaves from his or her civilian employment for a period of active service (N.C.G.S.A. § 127A-111).
6.3.5 – 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 et seq). 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 for FMLA leave if they have worked for their employer for at least 12 months, have worked at least 1,250 hours in the 12 months prior to starting leave, and if their employer has at least 50 employees within a 75 mile radius. 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 sick leave concurrently with FMLA. Use of paid leave time does not extend the maximum period of job-protected leave (generally 12 weeks). In addition, an employee’s ability to substitute accrued paid leave for unpaid leave time is determined by the terms and conditions of the employer’s normal leave policy. For example, if a policy requires that vacation be taken in full day increments, an employer can deny use of the paid leave time for an employee’s one-half day of FMLA leave. Similarly, if sick time can only be used for the employee’s own illness, substitution could be denied to care for a child with a serious health condition. If an employee does not comply with the requirements of the employer’s policy or is otherwise not eligible for paid leave, the employee may still be entitled to take unpaid FMLA leave. For more information, visit http://www.dol.gov/whd/fmla/index.htm.
6.4 – 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 North Carolina Division of Employment Security (DES) 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, DES publishes 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. For additional information regarding DUA benefits, visit https://des.nc.gov/des/static?page=DUA.
6.5 – Frequently Asked Questions
Q 6.1 – What is unemployment insurance?
Unemployment insurance (UI) is a program designed to provide temporary financial assistance to workers who are unemployed through no fault of their own. UI benefits are paid as a matter of past employment and legal entitlement, and not on the basis of need.
Q 6.2 – How do I qualify for unemployment insurance benefits?
You must meet all of the following requirements to qualify for benefits:
– must have earned enough wages in your base period. The base period is the first four of the last five completed calendar quarters before you filed your claim,
– must be unemployed or partially unemployed through no fault of your own,
– must be able and available to work, and actively seeking work.
If you are temporarily laid off due to decreased workload but remain employed, your employer may file a claim on your behalf. Work search requirements may be waived in such cases.
Q 6.3 – What is Disaster Unemployment Assistance, or DUA?
Disaster Unemployment Assistance (DUA) provides financial assistance to individuals whose employment or self-employment has been lost or interrupted as a direct result of a major disaster as declared by the President of the United States, and are not eligible for regular UI benefits under any state or federal law program (e.g., self-employed individuals or individuals unavailable to work due to an injury that is the direct result of the disaster). While DUA is a federal program, it is administered by states as agents of the federal government (42 U.S.C. § 5177 (2000)).
Q 6.4 – How do I qualify for Disaster Unemployment Assistance?
Disaster Unemployment Assistance may be available to certain unemployed or self-employed individuals who:
– Have applied for and used all regular unemployment benefits from any state, or do not qualify for unemployment benefits;
– Are self-employed individuals or small business owners who lost income due to the disaster;
– Are prevented from working due to an injury caused by the disaster;
– Are unable to reach their job or self-employment location because they must travel through the affected area and are prevented from doing so by the disaster.
– Were to commence employment or self-employment but were prevented from doing so by the disaster; or
– Became the breadwinner or major support of a household because of the death of the head of the household, as a result of the disaster.
Q 6.5 – How do I file for Unemployment Insurance (UI) or Disaster Unemployment Assistance (DUA)?
To file a claim for unemployment insurance or disaster unemployment assistance, you must file for regular benefits before filing for DUA. You may file for regular unemployment benefits online at des.nc.gov. Click on “Sign Up” to establish a secure DES account and then “Apply for Unemployment Benefits/File a Claim.”
If you cannot file online, a claim may also be filed by phone at 888-737-0259 or by the submission of a paper application to the Division of Employment Security Customer Call Center – THP, P.O. Box 25903 Raleigh, NC 27611, (fax) (919) 250-4315. For the fastest response, you should file your claim online or by phone.
If you are determined by DES not to be eligible for regular unemployment insurance, you should call the Disaster Unemployment Assistance (DUA) hotline.
To apply for DUA benefits, claimants should have the following information ready and available:
– Social security number;
– Mailing address and zip code;
– A telephone number where the employee can be reached for additional information;
– NC driver’s license or motor vehicle ID card number, if applicable
– Alien registration card number, if applicable;
– The names and addresses of all employers the claimant worked for within the last 18 months, including those in other states;
– Any check stubs or other proof of earnings for employment within the last 18 months;
– If self-employed, the most recent federal income tax returns and/or profit and loss statement; and
– For farmers and commercial fisherman, federal income tax returns.
If these records were lost in the disaster, you should apply anyway and inform DES of the circumstances at the time you apply.
To receive DUA benefits, all documentation required to substantiate wages must be submitted within 21 days from the day the DUA application is filed. Failure to submit the required documentation within the 21-day time period may result in denial of eligibility for DUA.
Q. 6.6 – How do I get proof of prior wages or earnings?
To obtain proof from the Internal Revenue Service (IRS) of prior income/earnings, request a transcript online or complete IRS Form 4506-T and send to the IRS. Generally, there is a $50 fee for requesting each copy of a tax return. If your main home, principal place of business, or tax records are located in a federally declared disaster area, the fee will be waived if the name of the disaster (for example, “NORTH CAROLINA HURRICANE FLORENCE”) is written in red letters across the top of the forms. Fax or mail the form to the appropriate IRS Campus found in the instructions on the form. For additional assistance from the IRS, call the IRS Disaster Assistance Hotline at (866) 562-5227.
Q 6.7 – Are UI benefits taxable?
Any UI benefits you receive are taxable income. You may elect to have the Employment Security Commission withhold a portion of your benefits each week to meet this tax obligation. You will be issued Form 1099-G at the end of January showing the amount of benefits paid to you, as well as any federal income tax withheld at the time the benefits were paid. The amount on the 1099-G is not reduced by any repayments you may have made for overpaid benefits. Therefore, if you repaid any benefits, you must maintain your own record of payment, such as reimbursement receipts or canceled check notices to make adjustments to your taxable income and as documentation for the federal Internal Revenue Service and State Tax Office when you file your tax returns.
Q 6.8 – What DUA benefits are available?
Disaster Unemployment Assistance is available to individuals for weeks of unemployment beginning after the date the President makes a disaster declaration and for up to 26 weeks after the major disaster, as long as their unemployment continues to be a result of the major disaster. The maximum weekly benefit amount is determined under the provisions of the state law for unemployment insurance in the state where the disaster occurred (https://des.nc.gov/des/static?page=DUA).
Q 6.9 – What help is available to find new employment?
Reemployment services are available through the North Carolina Division of Workforce Solutions at its NCWorks Career Centers or by calling (919) 814-0541. For additional information regarding reemployment services, visit https://www.ncworks.gov/vosnet/Default.aspx?plang=E.
Q 6.10 – What is an employer’s obligation with respect to a group health plan?
In certain situations, COBRA may require an employer to extend COBRA continuation coverage under a group health plan to an employee and his or her spouse and dependent child(ren) (“Qualified Beneficiaries”) following coverage loss due to certain qualifying events. Qualifying events include loss of coverage due to the following events:
– Most voluntary or involuntary terminations,
– A reduction in hours triggering a coverage loss, or
– The death of the covered employee.
If applicable, COBRA generally requires the employer to extend coverage under the group health plan for a period of 18 months. However, the employer may charge the Qualified Beneficiaries up to 102 percent of the cost of providing coverage under the group health plan to a similarly situated active employee.
COBRA coverage is not required in all cases. Certain employers, including small employers, may be exempt from COBRA. Further, if an employer terminates all group health plans for active employees, the employer no longer has to extend COBRA coverage to any Qualified Beneficiaries. For more detailed information, visit: https://www.dol.gov/sites/default/files/ebsa/about-ebsa/our-activities/resource-center/publications/an-employees-guide-to-health-benefits-under-cobra.pdf.
Q 6.11 – If the office must close temporarily, are there alternatives to a layoff?
In some circumstances, it may make sense for an employer to place its employees on unpaid administrative leave status while the office regroups. If the employer’s benefits plans permit continuation of coverage during such leave, employees may be able to maintain coverage. Employers should check the applicable plan documents before making this decision.
Q 6.12 – Can my employment be terminated without notice or cause?
Unless you have a written agreement (contract) for employment for a specified period of time, your employment is considered at-will and can be terminated by you or your employer at any time, for any reason, with or without notice.
Q 6.13 – Are there any legal restrictions against firing, suspending or disciplining employees?
Various state and federal laws 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, age or genetic information.
The law also grants certain rights to, and prohibits discrimination against, a person who is obligated to perform in a uniformed service, including the Reserves and National Guard. This includes a call to active duty or an order to remain on active duty as a result of a national emergency.
Q 6.14 – Am I entitled to take leave to deal with my own or a family member’s serious health problem?
Your employer may have a sick leave or vacation policy that entitles you to a period of paid leave. In addition, the federal Family and Medical Leave Act (FMLA) may provide up to 12 weeks of unpaid leave for certain family and medical reasons. The FMLA applies to employers with at least 50 employees. To be eligible, you must have worked for your employer for at least 12 months (which need not be consecutive), and for 1,250 hours in the 12 months prior to the start of your leave. You can take leave for (among other things) a serious health condition that prevents you from performing your job, or to care for a spouse, child or parent who has a serious health condition. You can continue your existing group health coverage and are entitled to reinstatement at the end of the leave. You will need to let your employer know that you or a family member has a serious health condition for which you require leave. You may also be required to complete an appropriate certification to establish your (or your family member’s) need for leave.
Q 6.15 – I had to evacuate and need to get my paycheck. What do I do?
If your wages are not direct deposited in your bank account, make sure your employer has your current address. If you want to have someone receive or pick up your paycheck on your behalf, your employer may need your written authorization to send or give the paycheck to that person.
Q 6.16 – My employment has been terminated. When will I get my final paycheck?
If your employer has discharged you, you must be paid on or before the next regular payday. after the date of your discharge either through the regular pay channels or by mail if requested by you. If any portion of your wages cannot be calculated by that date (e.g., bonus, commissions), you must be paid those wages on the first regular payday after the amount becomes calculable.
Source: This question and answer section utilizes information provided by U.S. Department of Labor at http://www.dol.gov/.