Snow, ice and blizzard tips for employers

by McAfee & Taft

As we fall headlong into the teeth of the winter weather season, now is a good time to review some common questions employers face this time of year.

What do I tell my employees?

Your first task is getting word out to your workforce about winter weather impacting your operations. Are you open or closed because of winter weather? Are you intending to start the workday late or perhaps close early? Don’t rely upon word of mouth to get the message out; it is important your intentions are timely and consistently communicated to all employees. Weather may sometimes interfere with your ability to reach your workforce. Consider using multiple communication methods so employees know what’s happening. This can include emails, updates on the employer’s website, a call-in number for information, and/or social media. Make sure to explain how any office closures or reductions in hours may affect employees’ compensation.

blizzard Is my pay affected by the office closing?

When employee hours are reduced due to inclement weather, employers must, at a minimum, follow the requirements set forth by the Fair Labor Standards Act.

Your non-exempt employees are those individuals who are entitled to overtime when they work in excess of 40 hours per week. Non-exempt employees are only paid for hours actually worked. If you have decided to close your workplace because of weather, non-exempt employees are not paid for the missed work time. If a non-exempt employee reports to work and is sent home early because of inclement weather, they are only entitled to pay for the hours they were present and actually working. A non-exempt employee may elect to use accrued paid time off (PTO) for hours missed on account of bad weather. If your office remains open and a non-exempt employee is unable to report to work because of weather or road conditions, that non-exempt employee does not receive any pay.

Sometimes one option for work and winter weather is to permit employees to stay at home and work remotely. Understand that work performed remotely at home by non-exempt employees constitutes hours worked for purposes of compensation under the Fair Labor Standards Act.

Exempt employees are your executive, administrative or professional positions who are not entitled to overtime paid under the FLSA. They must be paid on a salary basis, regardless of the number of hours they actually work during a workweek. For exempt employees, their salary is not reduced if you choose to close your office on account of bad weather. If you have a PTO plan, you can reduce an exempt employee’s accrued leave by the amount they are absent from work on account of an office closure. However, if the exempt employee does not have any accrued PTO, they receive their established salary, regardless of how many hours they actually work during an office closure.

For exempt employees, if your workplace remains open during bad weather and an exempt employee can’t or doesn’t report to work for a full day, that is treated as a personal absence, and you can deduct a full day from the employee’s accrued PTO. If the exempt employee has no accrued leave, you can deduct a day’s pay from their salary – but only in full day increments. In other words, if your workplace remains open in bad weather and an exempt employee misses part of the day, you cannot reduce their salary for that partial day absence.

Keep in mind the above descriptions of compensation are what are required by the Fair Labor Standards Act when work hours are reduced because of weather. An employer may choose to be more generous when paying employees during office closures due to bad weather. If it chooses to do so, the employer should communicate its intentions to all employees and make sure that the generosity is applied uniformly.

What about injuries and accidents caused by the winter weather?

Snow and ice can cause injuries to employees by way of slips and falls or vehicle accidents. Injuries occurring while actually performing work (e.g., deliveries, performing services on behalf of the employer or a client) are clearly covered by workers’ compensation benefits. Additionally, under the old workers’ compensation law, injuries that happen in a parking lot provided by the employer during breaks or lunches or in transit to work could, in some cases, be a workers’ compensation injury.

The new Oklahoma workers’ compensation law, which applies to claims filed on or after February 1, 2014, reduces an employer’s liability for injuries occurring when the employee is not actually working. Beginning February 1, 2014, injuries occurring during transportation to or from work, in parking lots, during breaks (unless the break is authorized and inside the employer’s facility), will not be a workers’ compensation injury.

When severe winter weather hits, your first priority should be employee safety. Make sure you understand the ramifications for weather closure decisions and clearly communicate to employees what are your intentions.

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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