Winter storms create challenges for employees and employers alike, with snow, sleet, and freezing rain adding unwelcomed stress into the basic activities of daily life. In turn, how an employer responds to emergency weather can either add to or detract from these additional strains on an employee’s life. To eliminate uncertainty and confusion inside the workplace, employers are advised to create a comprehensive emergency weather plan. 

Here are just a few factors to keep in mind:

• Fair Labor Standards Act (FLSA): An employee may be exempted from the FLSA’s wage requirements if the employee is paid on a salary basis. Full pay is required where the employee is ready, willing, and able to work, and does some work in a given week, even if the employer is closed for business one or more days due to weather conditions. An emergency weather policy  that explains whether and under what circumstances there may be deductions in leave accruals for exempt employees (i.e., the employer is open but the employee is unable to travel to work because of road closures) may prevent confusion and should be presented to the employee well in advance of inclement weather.
• Family Medical Leave Act of 1993 (FMLA): Can an employee take leave for snow storms, and can an employer count snow days when the office is closed against an employee’s FMLA balance? Common sense suggests that snow days are not related to a “serious health condition,” and courts seem to agree with this reasoning. If the employer is closed due to inclement weather, that time can likely be counted against the employee’s FMLA leave bank if the employee is on leave for the entire week.  
• Mandatory Attendance/At-Will Employment: Weather-related emergencies may provide some protection against termination where conditions legally prohibit an employee from performing actions that are otherwise permitted. For example, a state of emergency may be issued prohibiting citizens from driving. Likewise, if an employee’s young children are home because schools are closed, a local government entity may consider it abuse or neglect for a parent with no other options to leave the children unattended in order to get to work on time. An employer drafting an emergency weather policy should consider the variety of possible lawful excuses employees may have for failing to report to work. 
• Productivity and goodwill: There are practical reasons why an emergency weather plan might allow for absences in certain circumstances. Productivity is one issue. Being on the job while there is a weather emergency does not necessarily mean an employee will be productive and error-free. It is also worth noting that an employer can build goodwill with employees and clients by carefully considering how it responds in a weather emergency. An employer should attempt to develop imaginative ways to maximize productivity and safety, whether through remote access or make-up days.  

The key in every instance is that the employer takes the time and energy to prepare a comprehensive emergency protocol that will address as many variables as possible to allow for a prompt and coordinated response. 

For more information about how this may impact your business, contact:

• James M. Paulino II (585.295.8351; jpaulino@goldbergsegalla.com)
• Caroline J. Berdzik (609.986.1314; cberdzik@goldbergsegalla.com)
• Sean P. Beiter (716.566.5409; sbeiter@goldbergsegalla.com)
• Matthew C. Van Vessem (716.566.5476; mvanvessem@goldbergsegalla.com)
• Or another member of the Goldberg Segalla Labor and Employment Practice Group.