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As the East Coast digs out from under historic snowfalls, and local government and transit agencies ask people to stay in their homes as the clean-up continues, employers must decide whether to require employees to come to work. If workers can’t due to dangerous travel conditions, should they still get paid?
It doesn’t usually sit well with employees, but they can be required to use their accrued paid time off (PTO) during inclement weather events, wage and hour attorneys say.
“Unless there is a state law restriction or a written policy to the contrary, employers may require employees to use their PTO to cover absences,” said Paul DeCamp, an attorney with Jackson Lewis in Reston, Va., and a former administrator of the Department of Labor’s Wage and Hour Division.
Alfred Robinson Jr., an attorney with Ogletree Deakins in Washington, D.C., and former acting administrator of the Wage and Hour Division, said it’s important for an employer to have an inclement weather policy spelling out the rules that apply to exempt and nonexempt employees when the employer is open during inclement weather vs. when it is closed.
The rules for nonexempt employees are straightforward—they are paid only for the time worked.
If the employer closes for some of a workweek due to inclement weather, it must pay an exempt worker his or her usual salary if the employee performs any work during the workweek, even if remotely, Robinson noted.
A PTO policy might specifically reference the employer’s ability to require the use of PTO by employees to cover weather-related absences, said Alex Passantino, an attorney with Seyfarth Shaw in Washington, D.C., and former acting administrator of the Wage and Hour Division.
If an employer closes the office and requires the use of PTO to cover the day, the impact on morale is likely to be negative—more so than if the office is open but the employer allows employees who can’t make it in to use a PTO day, Passantino said. “If the employer decides in advance to shut down and it turns out that the expected inclement weather does not materialize—as has happened here in D.C. with the federal government a time or two—employees who are forced to use PTO on a day they could have made it in will almost certainly react negatively,” he explained.
When exempt employees work a partial day and then leave early due to bad weather, they still must be paid for the full day. “Applying PTO for the time missed is one way to satisfy that requirement,” noted Robert Boonin, an attorney with Dykema in Detroit and Ann Arbor, Mich.
It is important that employees understand the expectations about working away from work ahead of time, along with employees being required to accurately report all time worked, he added. “Employers should also have policies about how employees can challenge the accuracy of paychecks and the consequences for not making timely challenges.”
He said courts have held that employees who claim to have worked off-the-clock but who have not notified the employer about that worked time are not entitled to pay for that time.
If an employer stays open despite inclement weather and an exempt employee chooses not to work, that is a personal decision and the day may be docked without jeopardizing the exempt status.
“A written policy is an opportunity for an employer to underscore the importance of employees’ safety when determining closures or whether employees should attempt to report to work in inclement conditions,” said Jim Swartz, an attorney with Polsinelli in Atlanta.
DeCamp said employers sometimes ask whether they may discipline employees for choosing to stay home during inclement weather.
“While the employer does not want to allow employees to hinder operations or to force a closure, the last thing an employer wants to see is a situation where a supervisor orders an employee to come to work in a snowstorm and the employee gets into a car accident,” DeCamp said. “I generally advise employers to think very carefully before disciplining in this situation and to err on the side of employee and public safety.”
One of the most common questions employers have during inclement weather is if “they can force employees with insufficient PTO balances to go into a negative balance situation, or, in other words, whether they can advance the employee extra PTO and then recoup that advance over time,” DeCamp added.
Generally, an employer can do that, assuming the practice complies with state law and the employer’s written policies, he said.
DeCamp noted that another frequent issue that arises is how to treat PTO deficits upon an employee’s separation from employment. State law will dictate whether and when employers may deduct the negative PTO balance from the final pay of nonexempt employees, he noted.
“For salaried exempt employees, whether the employer can deduct that balance from final pay depends on whether the employer could have deducted it from the employee’s pay at the time of the absence—the missed time that gave rise to the PTO deficit,” he said.
Allen Smith, J.D., is the manager of workplace law content for SHRM. Follow him @SHRMlegaleditor.
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