During seasons such as winter, conditions such as snowy and icy roads sometimes make it impossible for employees to get to work, leading to lost work time.
As an employer, do you have a policy for dealing with such situations?
Employee absence due to inclement weather not only leads to lost time, but it also raises some pertinent questions.
Should employers pay employees for the days they did not show up to work because of bad weather conditions?
How do employers track the attendance of employees during such weather conditions? Are employers allowed to reduce the time employees spend away from work from their paid time off?
In the past, there was an unwritten rule in most businesses that under no circumstances were business operations supposed to shut down.
Employees had to do everything within their ability to get to work, regardless of weather conditions.
In recent years, however, employers have started being more concerned about the welfare and wellbeing of their employees, workplaces have become friendlier to employees, and the unwritten rule that a business has to always remain open is being done away with.
Sometimes, of course, employers have no say about the decision to close a workplace.
For instance, if a blizzard hits, or a state of emergency is declared due to inclement weather, there is not much that an employer can do about it. Employees just can’t make it to work.
Average number and percentage of employees who are absent from work due to inclement weather each month.
Most times, however, the decision to close a workplace is made proactively rather than reactively.
Employers make the decision based on weather forecasts as well as considerations such as variances in precipitation, flood zones, snow plough routes, school and day care closings, and so on.
IMPORTANCE OF AN INCLEMENT WEATHER POLICY
Whenever the area around your workplace is experiencing inclement weather, the two main considerations that should be at the top of your mind as an employer are employee safety and pay.
During bad weather, there is a significantly higher risk of traffic accidents, and no employer wants their employee to get involved in an accident just because the employee had the obligation to make it to work despite the roads not being safe.
An inclement weather policy outlines and communicates company protocols concerning employees showing up during an adverse weather event, as well as how they are going to be paid for the days they are unable to show up to work due to adverse weather, and how business operations will be kept on track.
Trying to conduct business during inclement weather is a stressful affair for both the employer and the employees.
Having a well-defined inclement weather policy gives everyone peace of mind by providing appropriate policies and procedures on how to act in these situations.
The terms of your inclement weather policy will be determined by the unique needs of your business.
For instance, some businesses, such as hospitals and emergency operations need to be staffed at all times, therefore their inclement weather policies have to provide for how the business will ensure that there are some employees at the workplace at all times.
For other businesses, such as an IT firm where employees work from 8 to 5, it is not very crucial for the business to be staffed at all times during inclement weather, therefore it will have a totally different inclement weather policy.
The terms on your inclement weather policy will also be greatly influenced by local, state and federal rules and regulations concerning the same.
MANAGING EMPLOYEE ATTENDANCE IN INCLEMENT WEATHER
In order for employees to act appropriately when adverse weather conditions strike, they have to be aware of what is expected of them in such situations, in terms of whether they are expected to show up to work, whether they can work from home, how they are supposed to notify their bosses about non-attendance, and so on.
All these has to be stipulated within the inclement weather policy.
Before defining what is expected of employees during adverse weather, however, there are some questions employers need to ask themselves first. These include?
- What does the organization consider to be inclement weather? That which might make it impossible for employees to make it to work? Examples of what might be considered to be inclement weather include snow fall exceeding 12 inches, flooding that ends up affecting transportation, storms that cause loss of electricity, road closure, or any other weather conditions that lead to a weather emergency being declared and people being asked to keep off the roads.
- What does the organization consider as a natural disaster? Examples of what might be considered as natural disasters include earthquakes, hurricanes and tornadoes, avalanches, and so on.
- Do the same rules apply for inclement weather and natural disasters, or are there different rules and regulations for each?
- Does the organization have operations that have to go on regardless of weather conditions (such as patient care in a hospital)? If yes, whose responsibility is it to perform these operations?
- Whose authority is it to decide whether the business should remain closed, close early, or delay opening because of inclement weather?
- In the case that employees are unable to make it to work because of adverse weather conditions, are they allowed to work from home?
- How will the organization contact employees to communicate any information regarding changes to business schedule due to adverse weather? When deciding on this, you should keep in mind that the adverse weather might affect some communication lines, such as telephone lines.
- How are employees supposed to communicate in case they are unable to make it to work due to inclement weather? Are they supposed to call or email, or is a text message to their boss enough?
- How will employees be compensated for partial workdays?
- How will non-exempt employees be compensated in case the business remains closed? What about exempt employees?
Answering these questions will make it easier for the organization to come up with a comprehensive inclement weather policy.
Once you come up with the policy, it should be shared with your employees long before it actually needs to be used.
PAYMENT OF EMPLOYEES DURING INCLEMENT WEATHER
Businesses want to be sure that they are getting value out of the money they use to pay their employees.
Therefore, in situations where an employee is unable to come to work due to inclement weather, the first question on most employers’ minds is “Do I still have to pay an employee even if they have not worked?”
Before answering this question, employers need to be aware of all state and federal laws regarding payment of wages to employees, as well as any employee contracts and collective bargaining agreements that might have an impact on how employees need to be paid in situations where the workplace is closed due to adverse weather conditions.
The US Department of Labor (DOL) in particular provides several directives on how to pay non-exempt and exempt employees during adverse weather events.
Non-exempt employees are any employees that work under the direct supervision of someone else, exercise their independent judgment in less than 50% of their working time, and earn less than $455 in a week.
Non-exempt employees are also entitled to a minimum wage and overtime pay. Non-exempt employees are often paid on an hourly basis, though this is not always the case. Some non-exempt employees are paid a salary.
According to the Fair Labor Standards Act, non-exempt employees should be paid according to the number of hours worked.
Therefore, in the event that a non-exempt employee does not work because the business was closed due to inclement weather conditions, the employer is not required to pay them.
However, this is dependent on the timing of the closure.
For instance, if a non-exempt employee works for a certain number of hours before business is closed, they will have to be paid for the number of hours worked.
Sometimes, an employee may show up to work, but then they end up getting sent back home without doing any work. In such situations, some states have laws that may require the employee to be paid a minimum number of hours.
These laws are usually referred to as “report-in pay” or “show-up pay.”
You need to be aware of any such state laws, since violation of such laws, even unintentionally, can expose your organization to legal suits.
Several states have such show-up pay regulations. For instance, states like Connecticut, Oregon (for minors only), Massachusetts, Washington D.C., California, Rhode Island, New Jersey, New Hampshire, and New York have laws that require employers to pay employees if they (the employer) fail to give sufficient notice of business closure.
Under these laws, any employees who show up to work as scheduled should be paid a minimum amount, even if they don’t work that day, or if they are sent home early.
In some states, such as Massachusetts, if an employee was scheduled to work for three or more hours that day, and shows up to work at the time they were expected to but then are not provided with no work, or are unable to work because of disruptions caused by adverse weather, they are supposed to be paid for a minimum of three hours at a rate that is equal to or higher than the basic minimum wage.
However, the report-in pay regulations are not applicable in all situations.
For example, in California, employers are not required to pay employees who show up to work but are sent home due to disruptions caused by emergency situations or “acts of God.”
For instance, if there was no scheduled closure of work, but then employees are sent home because of a power outage or something like an earthquake, the employer is not obligated to give employees report-in pay.
In New Hampshire, there are exceptions for situations where the employer is able to show that they made “good faith efforts” to communicate to employees that they are not required to report to work.
With so many variations in state laws regarding inclement weather, it is very important for employers to be conversant with the applicable laws within their state.
Aside from employees showing up to work and being unable to work or being sent home, there is also a different scenario where a non-exempt employee shows up at work and works their requisite number of hours.
However, at the end of their shift, they are unable to leave due to adverse weather and therefore continue working.
In such situations, the employer is required to pay the employee for all the time worked, including overtime pay.
Sometimes, an organization might have a policy that allows non-exempt employees to work from home during adverse weather.
In such situations, it is important for the organization to formulate protocols that will be used to keep track of the time spent working.
Even something as simple as asking the employee to record on a notebook the amount of time they spent working might be applicable, though it might be subject to abuse.
Aside from having a protocol for keeping track of time worked, employers should also have well-defined guidelines on how much time non-exempt employees working from home during adverse weather can spend working.
This protects the employer from abuse of the work from home policy.
For example, an employee who is normally required to work eight hours a day might report that they worked ten hours from home and claim overtime.
Having guidelines on the maximum number of hours that can be worked remotely helps prevent this.
Exempt employees are those that earn more than $455 in a week and are not eligible for overtime pay.
Employees who fall under this category are either those that are in supervisory positions with two or more employees under their supervision, or those that are routinely required to exercise their independent judgment in majority of their job duties. Exempt employees are paid a salary rather than an hourly wage.
According to the Fair Labor Standards Act, an employer is not allowed to dock an employee’s pay based on the quality or quantity of work performed, or when there is no work to be done, provided the employee is ready and willing to work.
Going by this directive from the FLSA, any business that decides to shut down its operations due to inclement weather is obligated to pay exempt employees their full salaries, provided the business does not remain shut for more than a week.
If the shutdown exceeds one week, then the employer is under no obligation to pay employees for that week, provided no work was done.
If the business remains shut for more than a week, but then an exempt employee does any work during that week, the employee is entitled to their full salary.
However, an employer has the right to ask an exempt employee to work from home during the period when the workplace is closed, or to ask them to work extra hours after re-opening to compensate for lost time.
This is why you need to have a very clear inclement weather policy.
If an exempt employee performs any work, even unauthorized work from home, they are entitled to their full pay, even if the workplace remained closed.
Sometimes, a business might remain open during adverse weather, but then an exempt employee is unable to make it to work because of the weather.
In such cases, the Department of Labor states that the employer has the right to deduct the employee’s pay for the days they did not make it to work.
Alternatively, the employer might subtract the time spent away from work from the employee’s vacation or paid time off.
In the event that employee has no remaining vacation or paid time off, and they don’t do any work during the period they are unable to make it to work due to adverse weather, the employer is under no obligation to pay for this time.
However, this only applies in cases where an employee is unable to report to work for a full-day. If an exempt employee with no available paid time off misses work for only a couple of hours, they are entitled to their salary for the whole day.
What If You Make Improper Deductions?
Sometimes, confusion arising from the complexities surrounding payment of employees during adverse weather might result in an exempt employee getting improper deductions on their salary.
Such deductions could result in an exempt employee losing their exempt status.
This can be costly for you, because it would make them eligible for overtime pay.
You would be required to give them overtime back pay for two or more years.
Fortunately, the Department of Labor makes it clear that an isolated instance of improper deductions will not automatically lead to reclassification of an exempt employee as non-exempt, provided the employee is reimbursed for the improper deductions.
If you realize that you have made improper deductions on an exempt employee’s salary, the first thing you need to do is to review your practices and policies to ensure that the same mistake does not happen again.
After reviewing your practices and policies, you should then go ahead and reimburse the employee the amount that was improperly deducted.
The Department of Labor states that, provided that an employer has a clear policy against improper deductions, completed a mechanism for employees to complain against improper deductions, and provided they reimburse any employee who has had their salary improperly deducted, they will not lose their exemption, unless the employer continues making improper deductions even after employees have complained severally.
With all the complexities surrounding payment to employees – both exempt and non-exempt – during inclement weather, I would recommend that you talk to an attorney or a professional employer organization in such situations to avoid exposing your organization to costly lawsuits.
USING PAID TIME OFF
Like I mentioned earlier, sometimes employers might ask employees to use their paid time off – personal days, sick leave days, or vacation days – to cover for the time they spend away from work during inclement weather.
There is nothing wrong with this.
However, if you decide to go down this route, proper guidelines about the use of paid time off during inclement weather should be stipulated within your inclement weather policy.
While there is nothing wrong with asking employees to use paid time off such situations, employers should also avoid punishing employees who do not have any paid time off balance, or those who end up exhausting their paid time off due to adverse weather.
For instance, if an employee is forced to use up all their remaining paid time off due to bad weather, and then they experience a sickness or personal emergency that requires them to spend a day or two away from work, managers should be given the authority to grant such an employee some time off.
When requiring employees to use their paid time off balance for inclement weather situations, it is also important to put employee morale into consideration.
For instance, sometimes a business might close due to forecasts of bad weather, but then the weather ends up not being bad enough to require closure of the business.
In such situations, employees might not be happy at being forced to use up their paid time off on a day they could have come to work.
To prevent this, some employers in places that have higher potential for business closure due to inclement weather have paid time off benefits that are specifically meant for inclement weather.
This prevents employees from using up all their paid time off on adverse weather.
It is also good to keep in mind that some state laws might impact the use of paid time off to cover for employee absence due to inclement weather.
For instance, some states have state-wide sick leave laws prohibiting the use of sick leave in a manner not prescribed within the law. In such situations, it might be illegal to ask employees to use their sick leave benefits during inclement weather.
Inclement weather can be stressful for both employers and employees. On the one hand, employers are worried about the loss of time and having to pay workers without them doing any work.
On the other hand, employees are worried about losing pay for something not within their control, or being disciplined for failing to show up to work due to bad weather.
The only way to ease this uncertainty is to create an inclement weather policy to provide guidelines on how weather-related absences will be handled by the organization.
While developing the inclement weather policy, you should keep in mind the requirements of the FLSA and the Department of Labor when it comes to payment of exempt and non-exempt employees.
Once the policy has been formulated, it should be distributed to all employees and included in the employee handbook.