Oh, the weather outside is frightful... A cup of hot cocoa and a warm fire sound just perfect, but what do hazardous road conditions and weather-related delays and closures mean for the workplace? Employers who close the office, or whose employees report late or not at all due to inclement weather, should be aware of how such tardiness, absenteeism, and closures might affect compensation. The federal Fair Labor Standards Act ("FLSA") does not directly address compensation in case of weather-related closures, but it is important to comply with its requirements, taking into account the circumstances that give rise to the tardy or absence from work. Inclement Weather Closings
Hourly employees (those who are “non-exempt” under the FLSA) generally only need to be paid when they are working. As such, unless the company's employee handbook or a collective bargaining agreement governing unionized employees provides for compensation in the event of a weather-related closure, the employer need not pay non-exempt employees who do not work when the office is closed.
Exempt employees, by contrast, must be paid their full salary for any week in which they incur absences caused by the company’s decision to close for inclement weather, if the absences occur during a workweek during which the exempt employee does any work, even if remotely. In some instances, where permitted by an applicable vacation or paid time off policy, an employer may be able to require an exempt employee to utilize paid time off on days(s) the office is closed due to inclement weather. It would be important, though, to consult the relevant policy before charging such time off, to ensure compliance.
A company that closes due to incelement weather should provide ample notice to its employees so that they do not venture out into bad weather unnecessarily. It is advisable to include notice provisions in an inclement weather policy, and companies should remind employees the day before any inclement weather is possible as to how notice will be given of any closure decision.
The Show Must Go On: Absences and Late Arrivals Arising From Inclement Weather When the Business is Open
Sometimes a business must stay open even when the weather is bad. This can create challenges for some employees with respect to issues such as travel and childcare.
Federal law does not make it unlawful to require employees to report to work despite inclement weather. This means that, absent a policy, contract, or collective bargaining agreement to the contrary, an employer may discipline its employees for tardiness and absences due to inclement weather in the same manner it might discipline them for any other late arrival or unapproved absence. However, caution is advisable. Some employees may commute from significant distances where the weather and roads are worse than where the business is located. As such, it may be best from both a morale and safety perspective to allow employees to make their own decision about reporting to work when road conditions may be hazardous. It is also advisable to communicate to employees, as part of a written inclement weather policy, that they should not report to work if they believe it unsafe to do so.
The law does not require an employer to compensate employees on days they choose not to report to work. Non-exempt employees must be paid only for hours worked. For exempt employees, an employer typically may make deductions for full-day absences if the company is open for business and the employee does not report to work, provided that such employee performs no work remotely during the absence. Exempt employees’ salaries should not be docked, however, for partial-day absences. In the alternative, an employer could elect to pay the exempt employee and deduct the applicable number of days from their accrued paid time off, provided that the applicable PTO policy permits such deductions.
An inclement weather policy can be helpful in outlining how to will handle weather-related closings and absences for both exempt and non-exempt employees with respect to pay, use of PTO, and other issues, and can emphasize to employees that they should put safety first in determining whether to report to work when weather and/or road conditions become hazardous. Employers who face weather-related issues from time may want to consider updating or adding such a policy to their employee manual/handbook, if such a policy does not already exist.
(Some content in this post was contributed by Meredith Jeffires of Alexander Ricks PLLC, Charlotte, North Carolina. The author thanks Meredith for her contribution! Read more about Meredith and her law practice at http://www.alexanderricks.com/meredith-s-jeffries/.)