To some extent, extreme, or inclement weather is in the eye of the beholder. To a 20-year-old who recently purchased a four-wheel drive SUV, a foot of snow or six inches of rain will probably be viewed as an opportunity for an adventure, and not a reason to stay home from work. An older employee who commutes by bus will have a different opinion.
It’s crucial, therefore, to begin your plan by picking the right individual to decide when employees should come to work, not come to work, or do so at their own discretion. The person designated for the role should be given clear guidelines to help in those borderline situations.
Some smaller companies take the simple approach of piggybacking on the decision made by a large local employer. Of course, during your busiest times you might have to pivot and continue operations regardless of what others do. In a slow season, you might be inclined to have a more relaxed standard.
School systems have well-established weather-related cancellation or delayed opening policies, but those decisions might be based on criteria not applicable to you. For example, if several school parking lots haven’t been plowed, a system might close the schools or have a delayed opening, even if the streets are clear.
If possible, it’s better to piggyback on the decisions of a large employer with criteria more like your own.
Employee Safety Comes First
Obviously your company has a profit motive, nevertheless, whoever makes the call to close or not close must have employee safety in mind. It’s unlikely that a court will hold you liable if an employee was injured while commuting to work in inclement weather conditions. But naturally you don’t want to put employees in harm’s way if you can avoid it.
Chances are, if your company must shut down due to weather conditions, you’ll still have to maintain at least a skeleton crew for vital operations. Therefore, establishing separate weather policies for essential and nonessential personnel will spare you from having to make those decisions on the fly.
Also, you’ll need a plan for notifying employees when the decision is made to keep the doors closed. Systems include website postings, social media, phone trees and recorded messages. In addition, you should have a procedure in place for employees to let you know when they can’t make it in even when you have decided to keep your doors open.
Having multiple communication systems can help in cases where the power is out and, for example, Internet access is not possible.
Finally, depending on the nature of their jobs, many employees may be able to work from home if they can’t make it out. Determine in advance who those employees are and how they should carry out their responsibilities.
Who Must be Paid During a Closure?
What about paying employees who are forced to stay at home and not work? In general, you’re required to pay nonexempt employees only when they actually work. However, in several states, if nonexempt employees report to work or if they’ve prepared to report to work, employers are obligated to pay them for a minimum number of hours. This is true even if the company decides to shut down. Among those states are California, Connecticut and Massachusetts.
In Massachusetts, if the employee was scheduled to work for three or more hours, that employee must be paid no less than minimum wage for at least three hours. Check with your state to find out what is required.
Exempt Employee Pay
It’s a different story for exempt employees. Under the Fair Labor Standards Act, if exempt employees are ready, willing and able to work but work is not available — due to conditions such as a weather emergency — no deduction from salary may be made. However, if the conditions last at least an entire week, employers are not obligated to pay those workers.
Also, during a weather-related shutdown, you can count the time exempt employees are unable to work against accrued paid leave they may have coming to them (according to Department of Labor Opinion Letter FLSA2005-41). If they don’t have sufficient accrued leave to cover the time, you may need to advance them the leave against time they will accrue in the future. Why should you do this? If you dock an exempt employee’s pay for any reason, that could undermine his or her exempt status, presumably an outcome you want to avoid.
In a weather emergency or natural disaster situation, the last thing you want to worry about is the nuances of federal or local wage regulations. Consult a qualified expert and incorporate the appropriate rules into your emergency plan. With any luck, you’ll never have to put it in place.