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Kandi discusses. 

By: Kandi Mensing, SPHR, MBA 

In this blog post we address the following as it relates to employer obligations during inclement weather: 

1. Workplace Policies & Notification 
2. Payroll Obligations As Per The FLSA/DOL
3. Disabled & Handicapped Employees 
4. Employee Commute

First and foremost, you should have an employee handbook in place that includes a policy addressing bad weather situations. This policy should address employees reporting to work, employees calling off work, safety as it relates to inclement weather, telecommuting, and the company's procedures during inclement weather. The policy should be in place and communicated long before there is a need for it. 

You should also have a method of notification so that employees have a known way to verify whether or not they should report to work. This is not an obligation, but rather a good business practice. When you have a system, it makes your life a lot easier. Employees also like knowing what to expect. So, rather than leaving yourself wondering how you will notify your employees of a workplace closure, and leaving your employees wondering how they can find out whether the workplace is still open, put in place a policy and procedure to manage these situations. Your life will be easier. Your employees will be happier. 

Salary vs Hourly: One big question that always surfaces during times of inclement weather is whether you can dock an employee’s pay for not reporting to work due to the potentially hazardous weather conditions.

So, how do you handle pay questions under the Fair Labor Standards Act (FLSA)? If a company opens an hour late because of a snowstorm, should an employer pay employees who show up earlier because they didn't hear the announcement? What time does the workday end when employees are given the option to go home because of inclement weather? What do the payroll laws require if the company is closed for an all day snow day?

An employer should establish a policy covering emergency closing pay options before the need occurs, ensure that all employees are notified of the policy, and implement it consistently. To some degree, wages are governed by the FLSA. Many states have payroll laws covering this issue as well.

Nonexempt employees. Under the FLSA, employers are not required to pay nonexempt, hourly employees who report for work and then are told that there is no work for them. Neither are they required to keep employees working for any specific number of hours or to pay them for hours they were assigned to work, but didn't. The only exception to this is in the case of a union's collective bargaining agreement. 

Even so, most employers pay for time not worked when an emergency or snow day forces an early closing. However, if the facility is being kept open and employees are merely permitted to leave early at their option, hourly workers are usually not paid for the time off.

If employees show up and are asked to stay until the situation is assessed, they must be paid even if there is nothing for them to do. On days that the facility does not open (and especially when notice has been given) the FLSA does not require that hourly employees be paid. It is always a good practice to allow them to use their vacation and/or sick time to get paid for the time off. Even better, give them a bonus of sorts by paying them for the missed hours. 

Exempt employees. The payroll laws concerning exempt employees are more complicated. The FLSA does not require employer-provided vacation time. Where an employer has proposed a bona fide benefits plan, it is permissible to substitute or reduce the accrued leave in the plan for the time an employee is absent from work, even if it is less than a full day, without affecting the salary basis of payment, if the employee still receives in payment an amount equal to the employee’s guaranteed salary. However, an employee will not be considered to be paid on a salary basis if deductions from the predetermined compensation are made for absences occasioned by the employer or by the operating requirements of the business.

Therefore, if the employer closes the office because of a snow day or other disaster for less than a full workweek, the employer must pay the employee’s full salary even if:

·         The employer does not have a bona fide benefits plan;
·         The employee has no accrued benefits in the leave bank;
·         The employee has limited accrued leave benefits and reducing that accrued leave will result in a negative balance; or
·         The employee already has a negative balance in the accrued leave bank.

Since employers are not required under the FLSA to provide any vacation time to employees, there is no prohibition on an employer giving vacation time and later requiring that such vacation time be taken on a specific day(s); just make sure your policies are worded appropriately. A private employer may direct exempt staff to take vacation or debit their paid leave account in the situation presented above, whether for a full or partial day’s absence, provided the employees receive in payment an amount equal to their guaranteed salary. In the same scenario, an exempt employee who has no accrued benefits in their leave account or has a negative balance in the leave account still must receive the employee’s guaranteed salary for any absences occasioned by the employer or the operating requirements of the business.

If the employer’s offices remain open during inclement weather or other types of disasters, and an employee is absent for 1 or more full days for personal reasons, the employee’s salaried status will not be affected if deductions are made from the employee’s salary for such absences. An employee who is absent because of inclement weather, such as because of transportation difficulties, is absent for personal reasons. A private employer may require an exempt employee who fails to report to work to take vacation or make leave deductions without jeopardizing the employee’s exempt status. When the office is open, an exempt employee who has no accrued benefits in the leave bank account does not have to be paid (i.e., may be placed on leave without pay) for the full day(s) he or she fails to report because of such circumstances as a heavy snow day, but only for full days. 

We know this is complicated, so if you have questions contact us. 

So, what are your obligations around supporting an employee who's handicap or disability prevents them from reporting to work during inclement weather conditions? 

Attorneys suggest that you first address whether they are "handicapped" or "disabled" under state and federal anti-discrimination laws. Employees satisfy either definition as long as they are substantially limited in a major life activity such as walking or standing, or major bodily functions. If they satisfy the definition, the employer is obligated to participate in the "interactive process" which is a key mechanism for facilitating the integration of disabled employees into your workplace. This process requires open dialogue between you and your employee with the goal of identifying "reasonable accommodations" that will allow them to perform their job. An accommodation is deemed "reasonable" if it does not pose an undue hardship to your business. 

In these situations, it’s not uncommon for employers to take the position that, notwithstanding the employee's disability, the duty to accommodate does not apply to commuting because commuting to and from work falls outside of the work environment. In the related lawsuit, the court agreed with the employer, and the appeals court reversed the ruling, stating that “under certain circumstances the ADA can obligate an employer to accommodate an employee's disability-related difficulties in getting to work, if reasonable.”

Overall, if you can establish that an employee suffers from a handicap or disability, you must engage in the interactive process with them to determine if a reasonable accommodation exists that will ease the burden associated with their commute and disability.

The question of liability for an accident is a delicate one. All of the facts and circumstances will be taken into account in determining liability, but generally employers choose to allow employees to exercise their own judgment in determining whether roads are passable during severe weather. If the employer absolutely requires attendance at work and such a requirement is unreasonable, considering the weather and safety in travelling, the employer is more likely to be held liable for any injury that befalls the employee coming to work. 

Source(s): HR.BLR, FLSA, & DOL 

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