In bygone days, many workplaces held a policy, whether clearly articulated or unspoken, that business operations must never shut down. However, in recent years, as employer obligations toward employees have grown, and employee-friendly workplaces have become more popular, employers have begun to re-think their “always open” policies during inclement weather. Of course, when a blizzard strikes or a state of emergency is declared, the decision to close a workplace may be taken out of an employer’s hands. However, more often than not, decisions to close a workplace are based on weather forecasts and risk perceptions as employers consider not only the safety of their employees, but also the variances in precipitation in surrounding locations, snow plow routes, flood zones, and even school and day care closings or delays. If employers have not yet reviewed, updated or communicated their emergency closing policy this year, this is a good time to do so before they are faced with an emergency situation that precipitates a workplace closing.
The first question many employers may ask is, “If an employee isn’t at work, do I have to pay them?” It’s important for employers to understand the federal and state laws that address employee wages, as well as the impact of any employee contracts or collective bargaining agreements that would apply to a situation in which the workplace is unexpectedly closed due to inclement weather.
The Fair Labor Standards Act (FLSA) requires employers to pay nonexempt employees (often but not always equated as hourly employees) only for the hours that they actually work. Therefore, in the event of a workplace emergency closing or delay, an employer may not be required to pay nonexempt employees. However, employers should consider the timing of the closure, e.g. whether the workplace closing is prior to the workday or in the middle of the workday, and whether there are any applicable state laws, such as “call-back” or “report-in” laws in the state where employees reside and work.
Exempt employees (often but not always equated with salaried employees) are excluded from specific provisions of federal and state wage and hour laws and are paid on a salary basis that does not vary from week-to-week based upon the quality or quantity of work performed. In other words, exempt employees are paid “to get the job done.” An exempt employee should be paid their normal wages unless no work is performed in a full workweek. Their pay may not be reduced in any fashion for partial day absences, except when permitted by law. Therefore, whether the workplace is closed for two-hours or four-days, exempt employees should receive their normal wages. Employers may require an exempt employee to work remotely while the workplace is closed, or work additional hours to make-up for lost time once the workplace has re-opened.
Use of Paid Time Off for Workplace Closings
Employers may decide to require employees to use available paid time off (PTO), e.g. vacation benefits, sick leave benefits, or personal days in the event of a workplace closure. Requiring employees to use PTO for a workplace closing due to inclement weather may make sense. However, keep in mind that an employer may close a workplace or delay the start of a workday due to a weather prediction that doesn’t come true. In that case, should an employee be required to use PTO when travel wasn’t bad and the workplace should have been open? The employer may want to consider allowing nonexempt employees the option to choose whether to use any available paid time off, or take unpaid time. For exempt employees, as long as they receive their normal weekly wages, the FLSA allows the use of PTO for the substitution of regular wages. However, if an exempt employee has no available PTO remaining, the employee must still receive his or her normal weekly wage in accordance with the FLSA if they work any part of the workweek.
Some employers have implemented a PTO benefit specifically for inclement weather that is similar to vacation benefits. In areas of the United States where the potential for workplace closings is higher due to inclement weather, this may keep morale up for employees who otherwise would expend all PTO benefits for workplace closures.
Employment laws regarding the use of PTO vary state by state. For example, in certain states, employers may be required to pay an employee if he or she shows up for work due to a last-minute workplace closing notice by the employer even if there is a policy requiring the use of PTO for a workplace closure. In other states, there may be state-wide or city-wide paid sick leave laws which may not require the use of sick leave benefits in a manner inconsistent with the law.
Communication with Employees
For any disruption of normal workplace routine, communication is critical – before the event, during the event, and following the event. One of the most effective, proactive methods of workplace communication is a consistently applied employee handbook. Including an emergency closing policy in the employee handbook affords the opportunity to provide important information, such as:
- A statement outlining the procedures for determining whether the workplace will be closed.
- A general guideline of the type of events in which the workplace may close, e.g. a state-level emergency, a county-wide travel advisory, or snowfall of 12-inches or more, etc., even though not every scenario can be addressed in the policy.
- Guidelines on whether employees are allowed to work remotely, make up missed work at a later date, and whether there is flexibility for employees whose children’s school is cancelled.
- Guidelines for temporary timekeeping measures for recording working hours accurately, if nonexempt employees are allowed to work remotely.
- Pay considerations as to whether employees will be paid during the closing, whether attendance is optional in the case of inclement weather, or whether employees are required to use PTO.
- The communication process and timeline prior to a closure, e.g. how far in advance will employees be notified? Will employees be called via a phone tree, or must employees check online to see whether the workplace is open or closed?
- A communication plan for employees to reach their supervisors if they are unable to go to work if the workplace remains open. It’s important for supervisors to remember that weather easily varies so while one area may receive eight-inches of snow, another area nearby may only receive a dusting. Also, an employee’s perception plays a vital role in his or her attendance. While one employee may be willing to venture onto icy roads, another one may not.
- A clear explanation of what happens if an employee fails to report for work when the workplace remains open, providing details such as whether the employee will be paid for that time off.
While a manager should consistently document reasons for employee absences, they will want to be careful when determining whether to take disciplinary action for an employee’s absence due to inclement weather, even if that employee has a history of excessive, documented absenteeism or tardiness. An employee’s failure to come in to work may not likely be considered disqualifying conduct in regards to an unemployment claim, if authorities have advised against essential travel on that day. Moreover, certain states have laws regarding disciplinary action for weather-related absences for which employers in those states must comply.
No employer wants to consider having to close a workplace facility; however, proactive planning and communication will empower employers to control what may appear to be an uncontrollable event rather than urgently reacting and responding to it after it has happened. Proactive planning and communication also provides the employer with an opportunity to demonstrate care for employees, which may build employee morale and trust and, in turn, create a more positive work environment.
For additional information on emergency closings, please contact us at www.newfocushr.com.
Written by: Kathi Walker, SHRM-SCP, PHR
Sr. HR Consultant