Pay, Time Off Issues for Office Closings Due to Inclement Weather
With winter weather upon us, including snowy and icy road conditions, employers are faced with the prospect of lost time when employees can’t or don’t report to work because of inclement weather.
Not only do absences due to bad weather reduce productivity, but they also raise a number of issues about how the time off should be treated when tracking attendance and calculating pay. Must you pay employees who don’t report to work because of weather conditions? Can you charge them with vacation or other paid time off (PTO) for missed work?
The U.S. Department of Labor (DOL) has issued some guidance to help you understand your payroll obligations and rights when bad weather affects employee attendance. The guidance particularly warns employers to exercise caution in docking the pay of exempt employees who miss work because of inclement weather.
Audio Conference: Weather-Related Absenteeism: Policies, Payroll Adjustments, Telecommuting, and More
What happens when an employer closes because of inclement weather?
Let’s start with exempt employees. The Fair Labor Standards Act (FLSA) prohibits you from reducing the pay of any exempt employee based on the quantity or quality of his work or when he is ready, willing, and able to work but no work is available.
Applying that basic principle, the DOL has taken the position that employers that decide to close because of weather conditions must pay exempt employees their regular salaries for any shutdown that lasts less than one full week.
On the other hand, nothing prohibits employers from requiring employees, including exempt ones, to use accrued vacation time or other time off to cover the missed work.
The FLSA doesn’t require employers to provide vacation or leave time at all, so there’s nothing to prevent you from giving your employees vacation or PTO but then requiring them to take it on certain days (for example, during a standard facility shutdown period, which many companies have during the late December holidays).
A private-sector employer may therefore deduct the period of absence due to bad weather from an employee’s remaining vacation or leave time, whether the absence is a full day or a partial day, so long as it pays exempt employees their regular salaries for that time.
The practical problem, of course, is that when bad weather hits at year-end, many exempt employees may have little or no remaining vacation or leave time. Or they may have already scheduled to take off — and received approval to use — whatever vacation or leave time they have remaining.
Even if an exempt employee has no time off remaining, she still must be paid her regular salary when the organization is closed because of bad weather for less than a week. The DOL has made it clear that employers must pay employees in those circumstances, even if they offer no vacation or PTO benefits at all and even if they provide those benefits but the employee has no remaining accrued leave available.
There’s no legal prohibition against applying PTO to days missed because of a facility closure and canceling part or all of approved vacation time for exempt employees who have time remaining but have approved plans to use their PTO on other days. You should first consider the inevitable negative effect of that practice on employee morale, however.
Mastering HR Report: Absenteeism
What if an employer’s business is open, but exempt employees don’t show up?
When the office or facility is open for business and an exempt employee doesn’t report to work because of bad weather conditions, he isn’t considered “ready, willing and able” to work — even if his unreadiness is due to conditions beyond his control. Therefore, the basic FLSA rule applies:
Exempt employees generally shouldn’t have their pay reduced for partial-day absences but may be docked for full-day absences. So if an exempt employee fails to report to work because of inclement weather for an entire business day when you’re open for business, he may be docked that day’s pay. As a practical matter, many employers pay anyway or allow employees to use available vacation or PTO to cover the absence.
Nothing in the FLSA requires employers to follow either of those practices, however. According to a DOL opinion letter on the subject:
The Department of Labor considers an absence due to adverse weather conditions, such as when transportation difficulties experienced during a snow emergency cause an employee not to report to work for the day even though the employer is open for business, an absence for personal reasons. Such an absence does not constitute an absence due to sickness or disability.
Thus, an employer that remains open for business during a weather emergency may lawfully deduct one full-day’s absence from the salary of an exempt employee who does not report for work for the day due to the adverse weather conditions.
Beware of partial-day absences, however, when an exempt employee arrives late because of weather-related commuting problems (including a late arrival due to the need to make alternate child-care arrangements because of a school closing) or decides to leave early because of weather-related concerns.
Under those circumstances, exempt employees must be paid a full regular day’s pay, regardless of whether management agrees that the situation was serious enough to warrant the late arrival or early departure.
The DOL has said, “Deductions from salary for less than a full-day’s absence are not permitted for such reasons under the regulations. If an exempt employee is absent for one-and-a-half days due to adverse weather conditions, the employer may deduct only for the one full-day absence and the employee must receive a full-day’s pay for the partial day worked.”
Learn more about correctly classifying workers in the Wage and Hour Compliance Manual
Uh-oh! What if we’ve made improper deductions?
First, review your policies and practices, and make sure you don’t make any improper deductions going forward. Then consider reimbursing employees if you’ve made improper deductions.
Improper deductions from exempt employees’ pay can cause them to be reclassified as non-exempt, which makes them eligible for overtime pay, including back pay for two or more years. The good news is that the DOL has held that “isolated or inadvertent deductions do not result in loss of the exemption if the employer reimburses the employees for the improper deductions.”
The DOL has gone on to say that “if an employer has a clearly communicated policy prohibiting improper deductions that includes a complaint mechanism, reimburses employees for any improper deductions and makes a good faith commitment to comply in the future, the employer will not lose the exemption unless it willfully violates the policy by continuing to make improper deductions after receiving employee complaints.”
Review your personnel policies to ensure they include that “safe harbor” language to protect against employee reclassification based on honest oversights in applying FLSA provisions.
Evaluate your employment policies and practices with the Employment Practices Self-Audit Workbook
What about non-exempt, hourly employees?
It’s up to your organization to decide whether to pay non-exempt employees for snow days because the FLSA doesn’t require you to pay them for hours they would have worked if severe weather conditions hadn’t caused an office or facility closure or created other problems that led to an absence from work.
As with exempt employees, you may allow or require non-exempt employees to use vacation or PTO to cover the absence, but that isn’t a requirement.
State-by-state comparison of 50 employment laws in all 50 states
Employer’s plan of action
Review your policies and practices so all of your employees understand how absences due to bad weather will be handled from a payroll and attendance-tracking standpoint. While you’re reviewing your policies, consider whether they adequately address the following issues:
- how office or facility closures will be communicated and who decides whether to close or remain open;
- whether employees who are able to report to work but have children whose schools or daycare facilities are closed may bring their children to work;
- whether employees who are unable to report to work for weather-related reasons are permitted to work from home and what conditions apply (e.g., remaining available via computer or telephone);
- how eligibility for pay will be determined if you choose to pay employees who are unable to report to work because of bad weather conditions, even when the office is open for business and the law doesn’t require you to pay them (for example, some employers will pay employees if their regular commute would involve travel through a county where a snow emergency was declared or over roads that were closed by local law enforcement authorities); and
- whether non-exempt employees who miss work because of weather conditions and aren’t eligible to be paid may make up some or all of the time missed within the same workweek.
Bottom line
Bad weather creates uncertainty and stress for both employers and workers. With proper planning, employers can reduce some of that stress by having clearly written and communicated guidelines for how your organization will handle any weather-related absences.
Get your plan in place, and when Jack Frost hits, you’ll be well prepared and ready to enjoy the snowy landscape.
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About: Indiana Employment Law Letter: Excerpted from Indiana Employment Law Letter, written by attorneys at the law firm of Faegre Baker & Daniels. INDIANA EMPLOYMENT LAW LETTER does not attempt to offer solutions to individual problems, but rather to provide information about current developments in Indiana employment law. Questions about individual problems should be addressed to the employment law attorney of your choice. Contact the attorneys at Baker & Daniels. |
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Friday, February 2nd, 2007 at 4:44 pm under
In the event the state you live in is declard a state of emergency, should your employer, who is also located in that state, dock you a days pay?
December 28th, 2010 at 12:14 pmThank you for this article. It still does not answer a question I have and cannot find the answer to anywhere. I am not interested in knowing if pay can/will be docked, forced PTO used, etc. I want to know if an employer can legally FIRE someone for being unable to make it in due to inclement weather. Even in an at-will state… Is this a valid reason for termination? What about employees (such as nurses) who are already at work, but knowing the roads will be impassable the next day, are told that they will be terminated if they LEAVE at the end of their day?
January 10th, 2011 at 1:20 pmThis is relevant in GA right now due to rare winter storms.
Thank you
Amanda,
January 21st, 2011 at 8:11 amYour questions leaves out a lot of detail. Is the employee covered by a CBA? If so what is the grievence process? Does the employer utilize progressive discipline? If so where in the progression does this incident fall? Etc, etc. In most circumstances an At-Will employer can leagally fire any employee for any non-discriminatory, non-retaliatory reason. If you’re referring to whether or not someone who was fired under the circumstances you suggest would be able to collect unemployment benefits, check with your state unemployment agency as to what constitutes disqualifying reasons. I’m not familiar with GA’s practicies on this but usually an employee is only disqualified for intentional misconduct.
Because of icy roads, our boss decided to close down for the day. He notified us of this decision by sending a text message that read ‘delayed until further notice. Confirm.’ we confirmed receipt of his message and awaited further notice– there was none. Fast forward to Friday, when he is processing our timesheets. We did not list any time for the day he had told us we were delayed, nor did we put down a vacation day. He took it upon himself to charge us a vacation day. We don’t get much vacation time in the first place, but when we called our corporate hr department, they told us it is company policy that if we close due to inclement weather, the company pays us anyway, without charging us a vacation day. When a coworker approached him about it, he grew incredibly defensive, shouted at her, and told her that because he had gone In and two employees decided to show up anyway, he thought it unfair to not charge the rest of us a vacation day. He said he didn’t ‘take’ anything away from us, but rather ‘gave’… When we questioned him further, he declared loudly that he had given us ‘bread on your tables’. He didn’t ask us first, just went ahead and did it. I’m frustrated that he thinks he need not adhere to company policy because a few people headed to work eve though he told us not to come in, and most of all, his behavior when confronted was highly unprofessional. He even said ‘well call home office and make a big stink about it then. When I die and you’re manager you can make decisio.
January 22nd, 2011 at 9:13 pmWhoops… Gotta love posting from my cell…
January 22nd, 2011 at 9:15 pmI’m frustrated that he felt it was acceptable to submit time that was inconsistent with our signed timesheets, and I’m highly irritated by his behavior when he was confronted. If anything, the employees that reported should be given a vacation day to use at a later point in time, and the rest o us should be paid for the day he closed, because that is company policy. This just doesn’t seem ring to me… What can we do??
Contact the department that does your payroll (HR or Accounting) and tell them you want your vacation day back per the company policy. The manager cannot go against company policy and expect you to like it. Since corporate HR already knows of this and is supportive of your position, have them give you your vacation day back.
January 24th, 2011 at 12:14 pmI am dealing with a very similar issue. I live in Texas and we have been having horrible winter weather this week. I did not show up to work on Tuesday or Wednseday this week because the roads were hazardous and icy. I called my supervisor prior to find out if the office would be closed. She told me to call the weather hotline which I did and found out that the opening would be delayed till 10:00 am. That in itself is ridiculous since I with several other coworkers live quite a distance from the office. Anyway I stayed home and then returned to work on Thursday. When I arrived I clocked in and noticed that someone had charged vacation days to my timecard for Tues. and Wed. I did not put in for those days. I called my supervisor who was still home due to bad weather and explained to her that I just wanted to have an excused NO Pay absence for those two days instead of using my vacation days she said that it was policy to charge vacation time instead of me just not getting paid. I pointed out to her a memo that had been sent to all employees in our building on Monday prior to the bad weather explaining the procedure for inclement weather. In the second paragraph it stated that the building would generally be open if the roads surrounding the building were open and passable but that in the event that employees are unable to report to work due to hazardous driving conditions in their area, they have the opption to make up the time, take it as vacation, or excused time off without pay. When I mentioned the memo and sent her a copy she returned my email saying that it still stands that I will still have two days of my vacation used because it is the departments procedure to do so. How can a department with a company do things different than the company itself? What is the use in having company policies and procedures if each department within the company can change or amend them as they choose? Is there anything I can do about this? Oh and today on Friday we have had 5 inches of snow so the office actually closed down today. I wonder if they will charge me a vacation day again today since I can not come in due to the closing of the office and hazardous road conditions?
February 4th, 2011 at 7:29 amOh in case it matters I am considered a salaried non-exempt employee.
February 4th, 2011 at 7:36 amIm also in TX and my employeer opened at 10am also. I got there some time later and found out they used my VAC i have very little left, the roads were very harzardous and it was a life or death choice to get on the road people were dying and wreaking there cars so i was scared to take the drive, im salaried non-exempt also i called HR they just said its up to your manager, what grounds do i have to stand on.
February 4th, 2011 at 3:39 pmIf a county has a Level 1 advisory whish means only emergency vehicles on the road and your employer stays open can the employer legally give bad points to someone who decides to stay home because they don’t to get a ticket. I realize when this happens you don’t get paid, but can they legally give bad points against you?
February 4th, 2011 at 6:43 pmI WAS ON VACATION LAST WEEK , AND OUR OFFICE WAS CLOSED 2 DAYS DUE TO WEATHER.
February 8th, 2011 at 1:03 pmI FEEL I SHOULD BE CREDITED BACK 2 CTO DAYS, BECAUSE HE TOLD THE REST OF THE EMPLOYEES THEY DID NOT NEED TO COME IN, AND WERE GOING TO BE PAID WITHOUT USES THEIR CTO DAYS. HE DISAGREES.
The private group in Texas closed for 4 busines days. The next week the administrator and advised a make up day schedule for exempt and non-exempt employees.
February 9th, 2011 at 12:50 amIs it legal to advise the staff exempt or non-exempt to follow this schedule.
There is no formal inclement weather policy.
Thank you…
This article is helpful, but I have a question that wasn’t answered. If an employee (FLSA exempt)does not have any PTO accured (a new employee)can the employeer pay the employee, but charge negative PTO to their accural, for days closed due to inclement weather?
February 9th, 2011 at 10:01 amAll those complaining. Be happy to have a job.
February 9th, 2011 at 11:49 pmI work for a school district and we have missed 4 days due to weather; and only two of those days we will NOT get paid. We are auxillary at will employees and work year round. Is this correct?
February 10th, 2011 at 3:23 pmI also live in Texas. This past two weeks, our office has closed twice due to weather. They called all employees and told them not to come to work. Now they posted a letter by the time clock stating, they will be taking those days from our earned time off.
February 11th, 2011 at 7:33 amHow can I prevent them from doing this and not get myself fired? Ive told them I do not wish to be paid for those days. I have already requested time off later in the year. Those dates were approved and I have it in writing. But the loss of these two days means I no longer have enough earned time off to use for my requested dates. I was told that I would have to “cut my vacation short” because of this!
Many other employees are upset as well, but will not speak out about it for fear of losing their jobs in such a terrible economy.
We closed one day this month for weather. Everyone was paid. I had one employee who was on a prescheduled vacation that week. I also will not credit back the PTO day (she hasn’t asked). I did however credit the day back to another employee who scheduled PTO the day before when they announced school closings for her kids. My position (as the HR Director) is that company closings for weather or emergency conditions are a safety consideration for those employees affected by the emergency. An employee who is sunning themselves in Florida is not affected and intended to take that day anyway.
February 15th, 2011 at 1:44 pmI guess that those part-timers like myself, with no vacation benefits- don’t have to worry about this issue. Go part-time, be ” worry free” !
March 23rd, 2011 at 1:20 pm[...] Pay, Time Off Issues for Office Closings Due to Inclement Weather [...]
May 24th, 2011 at 3:57 pmOn the East Coast, following Hurricane Irene, employers have no power. If it lasts more than one week, what happens? We’re on day 3 and don’t have any vacation time accrued.
August 31st, 2011 at 9:55 amI also had a problem during Irene. My store was closed because of the impending storm and the mall was closed as well. I showed up and was turned away. I contacted the store Manager. She said she would check up on it. So, I returned home. I went back to the mall an hour later and it was still closed. I was told it would open after 1200 PM. I stayed and waited.
The Mall failed to contact our store manager of the closing. I arrived able and willing to work. I was told they would not pay me for that time. The store manager failed to show up due to her house having a tree hit it. So, that left me to close the store at 9:00 PM. I put in close to 16 hours. Now, they not only say I will not be paid for the time spent waiting for the mall to open, but they will not pay me overtime for working the extra 8 hours.
They even suggested I try and collect from the Mall. Huh? Thanks in advance for your help.
September 1st, 2011 at 7:09 pmMy question is in relation to inclement weather and pay. I am a Michigan resident. If an employee is off of work due to inclement weather, are they allowed to use sick time to cover the time off?
November 16th, 2011 at 10:54 am