(c) 2017 Jon L Gelman, All Rights Reserved.

Tuesday, September 5, 2017

Hurricane Irma - Employment Status Issues

Hurricane Irma is quickly approaching the US and a projected Florida landfall is expected. Predicting its direction, arrival, and strength is a major challenge.
During my recent visit to the National Hurricane Center [NHC] in Florida, it became apparent that the US program is grossly underfunded and behind the times. On the other hand, the European program [GEFS Model] is a more update to date and accurate computer modeling system (see the image below).

It was pointed out to me by meteorologists at the NHC that the FLOOD surge is a major cause of hurricane deaths. As we have seen from the recent tragedy caused by Hurricane Harvey, water not wind is the major cause of deaths.

During the aftermath of a hurricane workers' compensation issues arise as to employment status since workers on hired on a temporary basis to assist with demolition and reconstruction. "In those instances where the employment is the result of an infrequently occurring situation, it is deemed to be casual. However, if the employment is for a short period of time, but one which would be considered a factor in a regular employment relationship, then such a situation is not considered casual, and is therefore compensable." Gelman, Jon, Workers' Compensation Law, 38 NJPRAC §7.4 (West-Thomson-Reuters 3rd Ed 2017). 
"As a result of a hurricane on September 14, 1944, an individual was employed for the purpose of removing fallen trees, electric and telephone wires in the Borough of Manasquan. The court took judicial notice that the hurricane of 1944 was a rare event. Injuries sustained by the claimant were not compensable since the hurricane was a rare event, and since the employment came about by chance as a result of a temporary emergency. Cierpik v. Borough of Manasquan, 2 N.J.Super. 110, 64 A.2d 890 (App.Div.1949), N.J.S.A. 34:15-36. Id.

Preparing for a hurricane is of critical importance! The followings suggestions were gathered from the Centers for Disease Control (CDC). Prepare and stay safe!

It is important to have an evacuation plan in place to ensure that workers can get to safety in case a hurricane may affect the area. A thorough evacuation plan should include:
  • Conditions that will activate the plan
  • Chain of command
  • Emergency functions and who will perform them
  • Specific evacuation procedures, including routes and exits
  • Procedures for accounting for personnel, customers, and visitors
  • Equipment for personnel
Some businesses are required to have an Emergency Action Plan meeting the requirements of 29 CFR 1910.38, see Evacuation Plans and Procedures eTool for more information. - Federal Emergency Management Agency (FEMA) has more information on evacuation plans as well as suggestions for precautions to take if you are unable to evacuate and do not have a safe room.

In addition to having evacuation plans in place, it is important to be familiar with the warning terms used for hurricanes, as well as your local community's emergency plans, warning signals, and shelters. Hurricane/Tropical Storm watches mean that a hurricane or tropical storm is possible in the specified area. Hurricane/Tropical Storm warnings mean that a hurricane or tropical storm is expected to reach the area, typically within 24 hours.

Be prepared to follow instructions from the local authorities and to evacuate if instructed to do so.

The Saffir-Simpson Hurricane Wind Scale is a 1 to 5 rating based on a hurricane's sustained wind speed. This scale estimates potential property damage. Hurricanes reaching Category 3 and higher are considered major hurricanes because of their potential for significant loss of life and damage. Category 1 and 2 storms are still dangerous, however, and require preparatory measures. In the western North Pacific, the term "super typhoon" is used for tropical cyclones with sustained winds exceeding 150 mph. This affects one or more U.S. territories ( i.e. Guam and the Mariana Islands).

Jon L. Gelman of Wayne NJ is the author of NJ Workers’ Compensation Law (West-Thomson-Reuters) and co-author of the national treatise, Modern Workers’ Compensation Law (2017 West-Thomson-Reuters). 

For over 4 decades the Law Offices of Jon L Gelman  1.973.696.7900  has been representing injured workers and their families who have suffered occupational accidents and illnesses.