Paying Employees in Weather Emergencies

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Attorney Harrison Oldham

Now that the political storm has (hopefully) subsided for a bit, let’s talk about another kind of potential disturbance: weather.  You know the feeling – suddenly you hear all the cell phones around you issue that long beep or siren indicating that hazardous weather may be approaching.  Although many people are still working remotely, there are large portions of the population that are still (or once again) traveling to the workplace. With that in mind, let’s take a few minutes to considering how to address inclement weather in your workplace.


First Thoughts

For many employers (at least in my experience), when they learning about dangerous weather conditions the first thought it, “well, we are going to stay open.” And that’s understandable. It is very tempting to remain open in bad weather, especially if your business focuses on customers outside your geographical area (think nationwide operations or remote service providers). A retailer might shut down pretty easily because it knows not many people are likely to come in anyway, but for a company that is operating around the country it can be a tougher decision because a lot of business could be lost in that time.

Therefore, employers may not want to close down until it is absolutely necessary to do so. However, if you do, there are some things you should take into consideration, like injuries.  Although it’s unlikely that an employee could bring a claim against your company if they are injured on their way to work, facts matter. For example, what if they slip on an icy parking lot at your facility, or what if they are involved in a wreck while our performing their job? Of course, there is workers compensation and insurance, but it is still something that should be considered.


Make a Plan

Ideally, instead of worrying about the questions above, before bad weather hits your facility you will have a severe weather policy in place.  It’s essential for employers of all types to be prepared for a disruption to normal business operations because of severe weather. Of course, not everyone can shut down during inclement weather. Hospitals, for example, need to be staffed 24/7. You may have critical operations to keep running.

Here are some things to consider when you are crafting your inclement weather policy:

  1. How you will communicate a closure to employees — phone call, text, email, broadcasting system, etc.;
  2. Your expectation that employees use caution while entering and leaving work in poor weather conditions;
  3. Your intention to monitor the weather forecast, as well as any specific conditions that will trigger a closure (snowfall amount, temperature, electrical outage, loss of heat, declaration of weather emergency, etc.);
  4. Instructions that traveling employees are not to drive in unsafe conditions, as well as a reminder of your prohibition of cell phone use while driving;
  5. Expectations about what happens in the event of closure, such as whether employees should work from home; and
  6. How you will notify customers, clients or vendors of a closure — notice on your website, voicemail message, email, etc.

Taking the extra steps before the weather hits will make life much easier when it finally does.


Who Gets Paid

During bad weather day, a big concern for many employees is just how payment works. If you shut down for the day, do you have to pay your employees?  After all, the employee wanted to come to work, but the employer made the decision to shut down for the day, right?  The starting point to answering that question is whether the employee is exempt or non-exempt.

Exempt Employees

Generally, exempt workers must be paid if they are working. You cannot dock their paychecks if they completed work anytime during the workweek. This means if the business is only shut down for a few days, these employees must be paid their normal salary.

However, once a week passes, things change. If the weather is so severe that you have to shut down for a whole week or more then it is a different scenario – then you can start docking for subsequent time missed.

While you do have to pay them for that first week out, there are some things you can do. For starters, as long as your policies do not forbid it, you can usually require employees to use their paid time off or vacation days for the days they aren’t working. However, if they don’t have any days left, you still cannot deduct future days or dock their pay.

Also, where possible, you can encourage telework. As we learned over the last 12 months, many functions of jobs can be done remotely. Therefore, if your employees can be doing at least some of their job duties from home, you can have them do so. That way, they are being paid for work they are actually doing. Just remember, if they are working from home, they are working. Therefore, if you do end up shutting down for more than a week, they will still need to be paid.


Nonexempt Employees

Pay for hourly employees during weather disasters is somewhat simple. Hourly employees should only be paid for hours actually worked. If employees do not come in, are turned away at the door, or are sent home early, the rule still stands that they must be paid for hours actually worked.  However, in this new age of remote login, cell phones, and running business-related errands while the office is closed, employers must be aware that hourly employees must be paid for all time actually worked.


 Contractual Pay

As a bonus, don’t forget about individuals with independent employment contracts.  Individual employment contracts may contain provisions, as could collective bargaining agreements in union settings. These provisions usually contain show-up pay provisions and have restrictions on mandatory use of the paid time off.


The Little Things Matter

 Everyone reading this most likely understands the realities of business – we work for many reasons, one of which is to earn income. But remember, it’s not always the bottom line that should be at the top of mind.  If times are bad for you at work, they could be just as bad, or worse, for employees at home.

For example, even if the business doesn’t close (or is open and staffed with only essential personnel), schools and daycare facilities may be closed. Public transportation may not be running.  Employees could be without power, or they may have damage to their homes. They could be completely immobilized (snow, flood, tornado, etc.) and unable to get their vehicles out of the driveway. Think through the possible issues your employees may face and how you will handle the missed time from work.

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About Harrison Oldham

Harrison grew up in Mansfield, Texas. He attended Texas A&M University for his bachelor’s degree, where he met his wonderful wife, Kelsey. After graduating magna cum laude from Texas A&M, he attended SMU Dedman School of Law, graduating with honors in 2012. Today, Harrison and his wife live in Dallas, Texas with their son, Teddy.

Since graduating from SMU Law, Harrison has worked exclusively in the field of business law. He has spent time in private practice and in-house, working with clients of every size; from single person startups to Fortune 250 companies. Today his practice focuses on serving the diverse needs of businesses and individuals throughout Texas. You can learn more about Harrison by visiting his website, at: http://lonestarbusinesslaw.com/.

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