United States: Inclement Weather FAQs: Who Gets Pay For A Snow Day?

As winter progresses, employers may find themselves monitoring the weather and wondering how to handle numerous operational headaches. Should a worksite close? If so: when, and for how long? Who can work from home, and who must be paid for what time? The kids may be hoping for a snow day, but employers know that winter weather creates a host of complications, including dangerous commutes and school closings, as well as delivery and service delays.

In dealing with such disruptions, employers should be prepared to resolve payroll issues that stem from inclement weather. To that end, we review a few common weather-related wage and hour questions. In doing so, we are guided primarily by the federal Fair Labor Standards Act (FLSA), although state laws may come into play as well.1

Does the FLSA require employers to pay non-exempt employees if they cannot work due to the weather?

Under the FLSA, non-exempt workers must be paid only for the time they work. As a result, employers need not compensate non-exempt employees who are not working because of bad weather. Notably, it does not matter whether the absence is based on the employer's decision to close a worksite or the employee's decision to stay (or go) home. If the worksite is open, but the employee decides to stay home or to leave a shift early, the non-exempt employee does not need to be paid for the hours missed.

There may be exceptions during a storm for waiting time, or on-call time. The FLSA considers employees to be "on call" if they must remain on the employer's premises and are unable to use their time for their own purposes.2 Thus, for example, if employees are required to remain at a location that has lost power in case power returns, they should be paid for the time spent holding down the fort despite their inactivity.

Do other laws require compensation to non-exempt employees, even if they are not performing work during inclement weather?

Unlike the FLSA, state laws may require compensation to non-exempt employees in certain circumstances. "Reporting time pay" laws—found in several states as well as the District of Columbia—obligate employers to pay non-exempt employees who report to work as required or as requested by the employer, even if no work is then performed.3 These laws vary by jurisdiction, but typically they require employers to compensate employees who were scheduled to work a certain number of hours and then are not needed for any or all of the scheduled time.4 In California, for example, employers must compensate such employees for half of their scheduled hours, up to a maximum of four hours even if they do not work.

Some employers may also be bound by "secure" or "predictable" scheduling laws. A few localities, such as Seattle and San Francisco, have passed legislation requiring that employers provide employees with their schedules two weeks in advance of their shifts.5 Generally speaking, employers that alter work schedules must compensate employees both for hours added and hours lost. These laws also require employers to pay for hours that their employees are scheduled "on call," but are not utilized.

Most of these state laws include exceptions, however, that might apply in extreme-weather scenarios. For example, the California reporting time pay is required if public utilities fail (i.e., electricity, water, gas or sewer) or if the interruption of work is caused by an Act of God or another cause not within the employer's control, such as an earthquake. The Seattle ordinance also includes an exception for hours lost due to natural disaster or due to a loss of power or other utility service. Suffice it to say, however, that employers with locations covered by these laws should be aware of these requirements and carefully evaluate the applicability of any exceptions.

What about exempt employees? Are they paid if an employer shuts down its operations? Can they be required to use paid time off?

When an employer shuts down its operations because of adverse weather conditions for less than a full workweek, exempt employees must be paid their full salary.6 This rule also applies if exempt employees work only part of a day. Thus, if an employer decides to send staff home early due to deteriorating conditions, it may not dock exempt employees' pay. Indeed, if an employer deducts from the employee's salary in this situation, it risks losing the exemption applicable to that employee.

Nonetheless—and barring any state law, local ordinance, or overly restrictive company policy to the contrary—exempt employees may be required to use accrued leave or vacation time (in full or partial days) for their absences. While it might not be a popular move, an employer can direct exempt employees to take paid time off for the closure, pursuant to the employer's bona fide leave or vacation policy. If, on the other hand, an employee does not earn or does not have any available leave time, the employee is entitled to his or her full guaranteed salary if the employer decides to close due to weather.7

What if exempt employees choose to stay home, even though the business is open? Must they be paid, or must they use paid time off?

If an employer is open for business, an exempt employee who elects to stay home due to the weather is considered absent for personal reasons. In lieu of paying salary, an employer with a bona fide leave or vacation policy may require the employee to use his or her accrued paid time off to cover the absence. As long as it is permitted by state law, leave time in this circumstance may be taken in full or partial days.

If an employer has a leave policy, but the absent employee does not have a leave account balance, the employer is not obligated to pay the employee. The employer can place the employee on unpaid leave for the full day(s) that he or she failed to report to work for personal reasons. Employers should bear in mind that salary deductions for less than a full day's absence are not permitted, even though leave balance deductions are allowed for partial-day absences. As a result, if an exempt employee with no leave balance misses half a day, the employer must pay that employee his or her salary for the entire day, with no partial deduction for the absence. Meanwhile, an employee with a leave balance in the same scenario could be required to use half a day of paid time off to cover the absence.

What if employees work from home?

Some employees, exempt and non-exempt, may be able to perform some or all of their duties remotely. Employers should consider how to address situations where employees work from home during periods of inclement weather.

As noted earlier, non-exempt employees must be compensated for all time spent working. Accordingly, employers must pay non-exempt employees for performing any work remotely, even if the employee did not have express permission to work from home. Employers, moreover, may need to rely on employee self-reporting of hours worked in such a scenario.

Exempt employees, too, must be paid their regular salary in this circumstance. Even if an exempt employee spends only a few minutes working remotely, he or she must be paid the usual salary for the day and the workweek. In instances where a partial day is worked, the exempt employee can be directed to use appropriate leave time for the balance of the time, as discussed above.

Do an employer's obligations change if there is a declared state of emergency?

Generally speaking, no—an employer's obligations do not change if the state government declares a state of emergency. A few states, such as Delaware and Pennsylvania, offer some protections to employees who miss work during a state of emergency. Laws in these states, for example, prohibit employers from terminating or disciplining employees who elect to stay home during certain types of emergencies.8

How can employers prepare for unpredictable, but inevitable, weather disruptions?

No matter where an employer operates, it can expect Mother Nature to wreak havoc eventually, in one way or another. With that in mind, employers can take steps to prepare for the next unavoidable disruption.

  • Employers should review their existing policies concerning inclement weather to make sure they comply with the FLSA and pertinent state and local laws. Such policies should explain the employer's position on the use of leave time for weather-related absences. They might also stress the importance of safety and explain whether non-exempt employees can work from home.
  • Employers should consult with knowledgeable employment law counsel if they have concerns or questions about their pay practices, particularly about applicable state requirements or municipal ordinances.
  • Employers without written policies should consider implementing procedures to be followed in the event of natural or other disaster.
  • As storm seasons or particular weather patterns approach, employers should remind employees of the established protocols.
  • Employers should also be proactive and explicit about communicating procedures for inclement weather or other disruptions. Employers should ensure that employee contact information is current and readily accessible to staff responsible for notifying employees of closures or delayed openings. Employers should consider developing protocols for making and communicating such decisions.
  • Employers should also consider training payroll staff on these issues, such as how to handle reporting time pay, and ensure that timekeeping records are clear and accurate.

Footnotes

1 Of course, specific agreements between employers and employees might also be relevant, along with applicable policies or collective bargaining agreements.

2 See, e.g., 29 C.F.R. §§ 785.14, 785.15, 785.17.

3 Reporting time pay laws have been enacted in California, Connecticut, D.C., Massachusetts, New Hampshire, New Jersey, New York, Oregon (as to minors only), and Rhode Island.

4 Christopher Kaczmarek, Reporting Time Pay: A Wage & Hour Winter Wonderland, Littler Insight (Jan. 6, 2011), http://www.littler.com/reporting-time-pay-wage-hour-winter-wonderland.

5 Doug Smith, Seattle City Council Approves Secure Scheduling Ordinance, Littler Insight (Sept. 20, 2016), http://www.littler.com/publication-press/publication/seattle-city-council-approves-secure-scheduling-ordinance; Michael Brewer, et al., San Francisco Ordinance Imposes New Burdens on 'Formula' Retail Employers, Littler Insight (Dec. 9, 2014), http://www.littler.com/san-francisco-ordinance-imposes-new-burdens-formula-retail-employers.

6 29 C.F.R. § 541.602(a) (explaining that deductions may not be made when work is unavailable at the employer's instruction); see U.S. Dep't of Labor, Wage and Hour Div., Opinion Letter FLSA2005-46 (Oct. 28, 2005), https://www.dol.gov/whd/opinion/FLSA/2005/2005_10_28_46_FLSA.htm (stating that exempt employees must be paid where "the employer closes operations due to a weather-related emergency or other disaster for less than a full workweek"); U.S. Dep't of Labor, Wage and Hour Div., Opinion Letter FLSA2005-41 (Oct. 24, 2005), https://www.dol.gov/whd/opinion/FLSA/2005/2005_10_24_41_FLSA.htm.

7 If state law and the company's policy permits, an employer theoretically could allow an employee to carry a negative vacation balance and then recoup the time later. This approach can become complicated, however, particularly if the employee separates before eliminating the negative leave balance.

8 See, e.g., Del. Code. Ann. tit. 20, § 3116 (discussing the restriction on the use of motor vehicles during a Level 3 Driving Ban); 43 Pa. Cons. Stat. § 1482 (stating that employers may not discipline employees "for failing to report to work due to a closure of the roads" either in the county where the employer is located or the county where the employee lives, due to a state of emergency declared by the governor).

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions