I’ve already have South Carolina employees reaching out to me about getting fired for missing work due to a hurricane, such as Hurricane Helene, which plowed through Georgia, North Carolina, and South Carolina last Friday. I expect employers firing employees for missing work will be the outlier, if only because the bad publicity from such an action could be pretty devastating. Public shaming can be a powerful motivator to not be an asshole. But based on these calls, it won’t be enough to dissuade everyone.
Is it Lawful to be Fired for Missing Work due to a Hurricane?
But the ultimate question remains: Is it lawful to fire an employee in South Carolina for failing to report to work due to a natural disaster? In other words, if you were an employee whose work remained open and had power, and the manager called you to come in, but you couldn’t make it due to lack of gas, power, clean clothes, means of transportation, lack of childcare, etc., could the company fire you and would that be a lawful termination?
Broadly speaking, yes, it would be lawful. Remember that South Carolina is an at-will employment state, which means you can be fired for good reason, bad reason, or no reason at all. [Read At-Will Employment v. Right to Work for SC Employees] So if the company requires you to come in and then fires you when you cannot, you would not normally be able to challenge that termination in the court of law.
HOWEVER, You May Have Legal Options…
There would be other circumstances where the termination would be wrongful. For instance, if you and your fellow employees engaged in discussions together about the safety of traveling to work due to damage to roads or something similar, and you communicated those joint concerns to the company and were fired because of those joint concerns, that would violate Section 7 of the National Labor Relations Act (NLRA). You could challenge that termination by filing a charge with the National Labor Relations Board. [Read Filing NLRB Claims in South Carolina] [Read What is a Protected Complaint for SC Employees?]
Or, as another example, if you have a disability that makes traveling to the workplace much more difficult in these types of conditions, then you could request a reasonable accommodation under the Americans with Disabilities Act (ADA) that would allow unpaid leave until the roads are cleared. [Read FMLA Leave and ADA Accommodations for SC Employees]
You may also have a serious medical condition, as qualified under the Family and Medical Leave Act (FMLA), that makes travel difficult. You could request protected leave if you are covered by FMLA (i.e., have been employed at least a year and the company has at least 50 employees). If you are fired for requesting FMLA leave, then you would have a claim for retaliation. [Read Retaliation for FMLA Leave in South Carolina]
Or, if you are pregnant and traveling into work in these conditions could create issues with the pregnancy, then you seek an accommodation under the Pregnant Workers Fairness Act. [Read Pregnancy Discrimination for South Carolina Employees] Again, being terminated for requesting an accommodation would also be unlawful retaliation.
Or, if the work conditions at the workplace would be unsafe (standing water, electrical issues, non-functional bathrooms), and you were to complain about the safety conditions at work and then get terminated, you would have a whistleblower retaliation claim. You would be able to file a claim within 30 days with SC OSHA. [Read OSHA Retaliation: Getting Fired in South Carolina for Reporting to SC OSHA]
What Steps Can I Take if I am Fired for Missing Work Due to a Hurricane or Other Natural Disaster?
For South Carolina employees, if you have been terminated for missing work under these circumstances, you can reach out to a South Carolina employment lawyer to discuss your legal options. Of course, your primary focus right now is getting power restored, keeping food cold, and making sure friends and family are safe. But keep in mind that some of these claims, such as those under SC OSHA, have only a 30 day statute of limitations, so once you are safe and well, don’t hesitate too long in preserving your employment law rights. You can reach out to our office for a consultation at 864-233-4351. [Click here for our Contact Us page]
Here are also some important agencies that you can contact:
South Carolina OSHA: 803-896-7665
U.S Department of Labor (FMLA): 803-765-5981
National Labor Relations Board: 844-762-6572
Equal Employment Opportunity Commission (ADA, Pregnancy Claims): 800-669-4000
If our office can be of assistance during this incredibly difficult time, please reach out and let us know. Stay safe out there, my friends. Take care of each other. Look for the helpers, as Mr. Rogers used to say. Compassion, hope, grace, love, and kindness will get us through this rough time together.
