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The Bar Bulletin
Jax Daily Record Monday, Dec. 4, 201706:50 AM EST

Employees lack protection when evacuating

When businesses discourage their employees from evacuating, we all lose.

By James Poindexter

The Jacksonville Bar Association Young Lawyers Section board of governors

As hurricane season comes to a close, it is time to reflect on what we learned and how we can improve as a state to prepare for next June.

This year, the First Coast found itself in the path of Hurricane Irma, one of the most dangerous storms Florida has ever seen. With Hurricane Matthew  a year behind us, it seems that these storms are becoming more common and more dangerous.

Not only did these hurricanes bring catastrophic winds and rain that resulted in heartbreaking devastation to personal property, they also had a destructive effect on people’s ability to earn an income. 

As these hurricanes approached southern Florida, state and local authorities imposed mandatory evacuation orders. For many, heeding such evacuation orders seems to be a matter of common sense. However, many Floridians face discipline or termination if they flee in accordance with the government’s orders, and there is little that can be done to remedy such actions. 

There are obvious problems associated with failing to evacuate when the federal, state or local authorities mandate residents to do so. Not only do the individuals put their lives at risk, they also risk the lives of the first responders who brave the storm conditions to rescue them. Such rescues place a strain on the government’s resources and prevent it from engaging in other essential services during the storm.

When businesses discourage their employees from evacuating, we all lose. 

In the wake of Hurricane Irma, Jacksonville received national attention after a pizza establishment threatened employees with discipline if they missed their scheduled shifts due to evacuating. Although the corporation called the decision an “isolated incident” by a manager who showed “very poor judgment,” Florida’s laws provide little to no recourse for an employee who is subjected to the kind of poor judgment shown by that manager.

In fact, there are very few legal protections that prohibit employers from retaliating against employees for refusing to violate the requirements of the law.

The Florida Legislature enacted Florida’s Private Sector Whistleblower Act, Sec. 448.102, Fla. Stat., which prohibits an employer from taking a retaliatory personal action against an employee who “objected to, or refused to participate in, any activity, policy, or practice of the employer which is in violation of a law, rule, or regulation.” 

While Florida’s Private Sector Whistleblower Act protects many employees who refuse to participate in their employer’s illegal conduct, the 5th District Court of Appeal said in a 2000 opinion that a mandatory evacuation order issued by the governor does not constitute a “law, rule, or regulation” under Florida’s Private Sector Whistleblower Act. (Gillyard v. Delta Health Grp., Inc., 757 So. 2d 601 Fla. 5th DCA 2000).

As a result, some employees who find themselves in evacuation zones are forced to choose between risking their lives and risking their jobs. 

In an effort to prevent employees from having to make such a decision, state Rep. Tracie Davis of Jacksonville introduced House Bill 225. If passed, it would protect employees who evacuate in accordance with a mandatory evacuation order in a similar manner that employees are protected under Florida’s Private Sector Whistleblower Act. 

Of course, there is a need to balance an employee’s interests with the public’s need for emergency and health care services during a storm.

House Bill 225 specifically provides for exemptions for emergency personnel, public safety officials and those employed by nursing home facilities, hospitals and assisted living facilities. These exemptions strike a reasonable balance that allows for the public health and safety to be protected during such emergencies. 

During Irma, Jacksonville witnessed the worst flooding to hit the region in 100 years. With such catastrophic storms becoming more common and dangerous, it is more important than ever that Florida’s Legislature provide protections to employees during natural disasters that will encourage them to obey mandatory evacuation orders issued by federal, state and local officials. 

James Poindexter is an associate with Delegal Law Offices, specializing in labor and employment litigation and professional license defense.

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