Inclement Weather Policy Tips for When Storms Hit

Despite the spread of remote work, clear inclement weather policies can reduce workflow disruption and ensure wage and hour compliance for many businesses.

“All employers with brick-and-mortar facilities should consider establishing inclement weather policies, especially if there is any requirement to work in the office,” said Joe Mulherin, an attorney with McDermott Will & Emery in Chicago. “Creating inclement weather policies helps prevent confusion among employees and can potentially reduce disruption to business operations.”

Some employers whose employees are remote have removed inclement weather policies or revised them to explain what workers should do if they lose internet or power at their remote work location, said Chuck McDonald, an attorney with Ogletree Deakins in Greenville, S.C.

As for employers whose workers have returned to the office full time, they should consider adopting a remote work policy, even if it is limited to inclement-weather days when the office is closed, Mulherin recommended.

Exempt Employees

Fair Labor Standards Act (FLSA) rules are different depending on whether an employee is an exempt employee or a nonexempt worker who is eligible for overtime.

When an employer closes for less than a full workweek because of a storm, the FLSA requires the organization to pay an exempt employee for the days it is closed, noted Jonathan Segal, an attorney with Duane Morris in Philadelphia and New York City. However, the employer can generally require that an exempt employee use paid time off (PTO) when the employer is closed. 

“Whether you should do that is a different issue,” he added.

If an employer remains open and an exempt employee does not come to work, the employer does not have to pay the employee for the day; this can be treated as an absence for personal reasons, provided it is a full day, Segal noted. When an exempt employee arrives late or leaves early, they must be paid for the full day, but the employer can require them to use PTO, if available, to cover the nonworking time. 

“If an exempt employee does not have sufficient accrued leave benefits, the employer must pay the employee’s full salary for absences caused by the weather-related closures,” Mulherin said.

The employer must also pay them for the full day if they do any work from home, Segal cautioned. 

“Due to the increase in remote and hybrid work arrangements, employers should be careful about taking deductions from employees’ salaries for inclement weather,” Mulherin added. Even if the workplace is closed, “there is a high probability that exempt employees are working at home.”

Nonexempt Employees

Nonexempt workers are treated differently from exempt employees. 

Absent a contract, collective bargaining agreement, or state law saying otherwise, nonexempt employees generally do not need to be paid for anything beyond their worked hours, said Stephen Gee, an attorney with Fisher Phillips in Detroit. 

There is an exception for nonexempt employees who are paid fixed salaries under the fluctuating workweek, Segal said. An employer must pay these employees their full weekly salary for any week in which any work was performed.

“Even where there is no duty to pay nonexempt employees, consider the employee relations message of paying exempt but not paying nonexempt employees for a day on which you are closed,” Segal cautioned.

If a nonexempt employee works at home, the employer must pay for all the time worked. Systems should be in place for employees to record their time so that they are properly paid, Segal added.

When employers provide employees with a laptop, there is an increased expectation that those employees will work from home if the office is closed or if they cannot get into the office due to winter weather conditions, Gee said. Even if an employee loses internet connectivity during a storm, they might still be able to do some work, he noted. If the internet is required for a timekeeping system, employers should remind nonexempt employees in advance to write down their hours worked in such situations.

In addition, an employer must pay nonexempt employees for any time spent working at a facility before a closure or standing by awaiting further information on closure, Mulherin said. 

Employers should also be aware of state and local predictive scheduling and call-in laws that could require nonexempt employees to be paid for missed time due to inclement-weather business closures. 

Predictive scheduling laws require employers to provide a minimum amount of advance notice of any changes in employee schedules, and these laws impose penalties for noncompliance, Mulherin explained. Call-in laws mandate that employees be paid a minimum number of hours on any day that they report for a scheduled shift. Some states with paid sick leave requirements now cover “safe leave,” which includes leave coverage for extreme weather, added Ben Stockman, an attorney with Venable in New York City.

Policy Considerations

As employers craft and implement inclement weather policies, Stockman said organizations should consider:

• The definition of “inclement weather.” It can vary depending on geography.
• The safety of their employees, which is paramount.
• When the business will close, open late, or stay open.
• Which employees are able to work remotely in a weather scenario (and which are not suited to do so).

Stockman said that employers should plan ahead and ensure that employees who can telecommute have the necessary equipment to work remotely if weather dictates a quick pivot.