Employers’ Obligations to Pay Wages for Workdays Missed During Winter Storm Uri

Jackson Walker
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Jackson Walker

During the week of February 15, 2021, many North American states experienced yet another record-setting weather-related event, unofficially known as Winter Storm Uri. For Texans, the storm brought rare sights of ice, snow, and days of below freezing temperatures, along with rolling and sustained power and water outages across the area. Many employees were unable to drive to work due to the severe weather conditions, and others were unable to work remotely due to the loss of power, water, internet, and phone services at their own homes. Businesses experienced similar conditions and closed their facilities due to the effects of the storm.

As businesses deal with the impact of the winter storm, employers are faced with the question of how, and if they are obligated, to compensate employees who missed work because of the storm. The answer depends on the status of the employee.

Non-Exempt Employees

Under the Fair Labor Standards Act (FLSA), employers are generally not required to pay non-exempt employees for any days that the employee does not perform any actual work. This applies to days they did not come to work or for days when the business was closed because of a weather-related event. If the employer’s paid leave policy permits it, non-exempt employees may apply available paid leave to the time missed due to inclement weather. If an employee’s paid time off (PTO) is exhausted due to business closures, no compensation is required.

However, non-exempt employees must be paid for any hours worked from home or at any other location. If there is any reason to believe that the non-exempt employee is performing work away from their assigned location, employers need to take steps to determine the nature of the work being performed off-site and how much time the employee worked. Additionally, employers may be required to pay non-exempt employees for any time those employees are required by the employer to be “on call” or “stand by,” even if the business is closed, depending on whether the employee can use the time effectively for non-working pursuits.

Exempt Employees

The FLSA states that exempt employees almost always must be paid their full, normal salary when they work any portion of a workweek, including in situations of inclement weather. Even if the business closes because of the weather, the FLSA requires employers to pay an exempt employee his or her regular salary for any shutdown that lasts less than one workweek. A private employer may, however, deduct the period of absence from the employee’s paid vacation or PTO, as long as the employee receives his or her full salary for the week.

When a business is closed for more than one week and the exempt employee performed no work during that week, that employer is not obligated to pay its exempt employees. If the business remains open but an employee cannot get to work because of the weather, an employer can deduct an exempt employee’s salary for a full day’s absence. Employers, however, should take note that it cannot dock an exempt employee’s salary for less than a full day’s absence without jeopardizing the employee’s exempt status.

Conclusion

Pay and attendance issues brought on by the storm depend largely on the status of the employee. Generally, employers have no obligation to pay wages to non-exempt employees for any days that the employee performs no work regardless of whether the business closed or remained open during the storm. Employers may be obligated to pay non-exempt workers who are on-call or on stand-by status, even if no work is performed. Exempt employees are required to be paid their full salary, even if the business is closed, unless they work no hours for that workweek. Depending on the employers’ paid leave policies, employers may require employees to use accrued vacation time or paid time off for workdays missed.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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