Winter is Coming: Is Your Inclement Weather Policy Prepared to Weather the Storm?

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This last year has seen record-breaking weather events hit the nation and the region. Devastating images of surging seas, walls of fire, and roads of ice, normally reserved for fantasy or science fiction realms, should remind employers to review and revise their inclement weather policies to take into account the increased intensity of weather events and natural disasters, and the impacts they have on the business and its employees.

The goal of any employee handbook policy is to educate the employees on how the company will handle different situations, and this policy should be circulated well in advance of any extreme weather event. While the company is not expected to account for every particular instance, the policy should give employees key information about facility closures, notification procedures, attendance expectations, and employee pay.

Is the Facility Open?
While closing the facility is a difficult decision, the company should identify one person that makes that call so the day is not spent debating whether or not to close. The policy should indicate that the company intends to maintain normal working hours even during instances of inclement weather, but should provide a call-in number or website that employees can check to determine whether the facility will be open on a given day, opening late, or closing early. If the facility is open, but employees are unable to report to work given local conditions, the policy should require employees to report that to the call-in number, email/website, or their direct supervisor. Of course, in extreme weather conditions, employees may not have access to power, internet, or phone services.

Companies can also consider tying a facility closure to federal office closures, local government office closures, or school closures. Since parents are also often scrambling for childcare when schools are closed, the policy can also consider a discussion of when children are allowed to be in the workplace (which depends on the workspace, type of work and safety considerations).

Employee Safety and Working Remotely
The policy should also consider a discussion of the importance of employee safety. Since employees commute from different parts of the region, most policies provide employees with some discretion about using their best judgment about whether to report to work in the instance of inclement weather. The policy should, however, retain discretion allowing the company to determine whether the employee’s absence will be counted as excused or unexcused.

Depending on the type of work at issue, the policy can also permit, with permission, an employee to work from home. Telecommuting raises important concerns about productivity, safety and confidentiality/privacy, which are outside the scope of this specific policy and article, but which must be considered whenever an employee is allowed to work from home.

Additionally, the policy should note that if the employer discovers evidence that an employee is abusing the inclement weather policy, the employer reserves the right to conduct an investigation and discipline the employee accordingly.

Employee Pay
The policy should also explain to the employees how pay is determined during an inclement weather event. The Department of Labor considers an absence due to adverse weather conditions to be an absence for personal reasons, such as when transportation difficulties during a weather emergency cause an employee to choose not to report for work and such an absence does not constitute an absence due to sickness or disability.

DOL regulations explain that if an exempt employee is “ready, willing, and able to work, deductions may not be made for time when work is not available.” DOL’s guidance indicates that if the exempt employee performs any work, such as checking emails remotely, the employee must be paid for the full salary day, and with limited exceptions, salaried employees must be paid their normal salary in any workweek where they perform some work.

However, if the business is closed for the entire week and the exempt employee performs no work at all, the employer may deduct the week’s pay. Where an exempt employee performs no work at all, the employer may be able to direct the employee to take a vacation or paid time off day from a company provided plan, but only if the employer has already provided written notice of this specific policy. Employers can still require employees that otherwise use vacation or PTO days to go through the proper request or reporting procedures.

Hourly employees are not required to be paid except for the hours they work, though many inclement weather policies voluntarily pay hourly employees who show up for work at least a certain amount of hours for the day (e.g., pay for four hours, even if they only end up working two hours before the facility closes due to inclement weather).

Business Considerations
If the facility is open to the public, the employer should also have a system in place to notify customers, vendors, and the public (where appropriate) that the facility will be closed due to inclement weather.
Employers should also consider the impact that a closure lasting a day, a week or more will have on production and delivery schedules, and may need to bring in additional temporary or part-time workers to assist with any backlog or be prepared to pay those employees who are able to make it to work overtime. The company may also need to make advanced arrangement with its payroll company to ensure employees are paid in a timely fashion.

Other Considerations
Employers subject to a collective bargaining agreement may have different contractual obligations regarding attendance and related discipline, and should consult their agreement.

Additionally, severe weather events may also trigger coverage under the federal Family and Medical Leave Act, or state law equivalents. These laws may provide enhanced protected leave for employees’ or their family members’ medical conditions related to the extreme weather event, including physical injuries, enhanced anxiety or the need for bereavement leave.

Remember that in addition to reviewing and revising their policy, employers must also be sure to circulate the policy to employees and be prepared to answer any questions well ahead of the weather event.
Tyler Volm, tvolm@barran.com, 503-276- 2111

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