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But tort liability sometimes may apply
Think twice before requiring your employees to come to work during a snow or ice storm: Companies can require workers to report to work unless a governmental order bans travel, such as the one that was instituted in New York City during the blizzard of 2016. But employers may face a negligence or wrongful death lawsuit if an employee is involved in an accident while in transit.
Travel bans are rare, though New York City Mayor Bill de Blasio has said his city may use them more often if severe weather becomes more common. But if the government encourages employers to keep workers at home or imposes a state of emergency, employers may still be able to decide whether to require employees to come to work, even in severe snow, said Bruce Hearey, an attorney with Ogletree Deakins in Cleveland.
“I don’t see much exposure [risk] for employers if they still require employees to come into work simply because of the snow,” stated Jeff Nowak, an attorney with Franczek Radelet in Chicago. “That said, employers in this situation should be mindful of accommodation requests from disabled employees because of the difficulty coming to and from work.”
You’d have to look at the particular state of emergency to determine whether only necessary travel was permitted, but some employees required to come in during or after significant snow might be needed because of the nature of their work, Hearey noted.
Even most travel bans will excuse firefighters, police and emergency service staff, he added.
If an employee is involved in a car accident on the way into work, the employer isn’t liable for damage simply because it required the worker to come in, according to Hearey.
Even if the employee is injured or killed, the employer “generally is not on the hook,” he said.
No federal or state laws make employers liable for requiring employees to come to work during severe weather, said Jay Hux, an attorney with Fisher & Phillips in Chicago. So, any lawsuit that is brought would most likely be under common law, such as a negligence or wrongful death suit—so-called torts.
Yet: “The facts would have to be pretty extreme” for a plaintiff to prevail under a negligence or other tort theory, Hux said.
The employee would have had to be injured because of the employer’s negligence and that causation would be difficult to prove, he explained.
“By and large, employers are not at risk unless they violate some emergency ban,” Hearey said.
However, Hux cautioned, “Facts matter,” and noted there may be tort liability depending on what the employee was asked to do and the degree of known danger.
Workers’ compensation would not cover someone traveling to work during a state of emergency, so the employer could be subject to a personal injury tort action by the employee or his or her family, including perhaps a wrongful death suit, said Marc Mandelman, an attorney with Epstein Becker Green in New York City. The odds that the employee or family will prevail depends on the jurisdiction in which the suit is brought, he noted.
Another possible source of liability may arise if a locality makes individuals subject to misdemeanor criminal penalties for traveling during a state of emergency when the roads are closed.
If an employer terminates an employee for not showing up at work, and that employee has refused to travel into work to avoid subjecting him- or herself to the risk of these criminal penalties, “that may be an exception to the at-will doctrine and be the basis for a wrongful termination claim,” Mandelman said. “But such a claim may not work in all states.”
Hux said most employers seek to be “good corporate citizens and are reasonable.” So, when inclement weather strikes, many employers “think of the well-being of their employees” first, and not their potential liability or lack thereof. For example, if streets are not plowed or sidewalks are iced over, coming in may not be a reasonable option.
“Employers also need to remember they are in the human relations business when it comes to their employees,” Nowak added. Furthermore: “Employers should be mindful of the impact on morale when they're the only shop in town requiring employees to work immediately after a two-foot snowfall.”
Allen Smith, J.D., is the manager of workplace law content for SHRM. Follow him @SHRMlegaleditor.
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