snow stormWith the first (and hopefully the worst) of the winter’s calamities behind us, HRLegalist is reminded of a silly, but apt, joke:

A: Knock Knock!

B: Who’s There?

A: Snow!

B: Snow who?

A: Snow laughing matter.

On the heels of Storm Jonas many employers rightly raise important questions about how inclement weather closures could affect their employees:

Question #1: Whether remaining open during inclement weather (or opening prior to the state and local authorities’ snow removal and ice remediation) will endanger the safety of its employees.

The first consideration in most employers’ minds is whether remaining open during inclement weather (or opening prior to the state and local authorities’ snow removal and ice remediation) will endanger the safety of its employees. Employers do not want to inconvenience their employees any more than necessary nor do they want to hear that a member of their team was injured while commuting to work. For that reason, employers typically use a variety of measures to evaluate whether their business should remain open, such as examining various weather reports, determining whether a state of emergency has been called, reviewed whether local schools have closed or scheduled delayed openings. Employers are reminded to dust off their inclement weather policies and remind employees that the policy explains how the employer intends to communicate with them prior to, during, and after the inclement weather event contact with its employees during the weather emergency event so they can make plans, accordingly. Moreover, employers whose employees work outdoors are reminded to monitor their employees and ensure that that appropriate protective measures are in place to ensure a safe work environment. Employers with employees that frequently work outside in the elements (and who are subject to extreme cold) should remind supervisors to frequently check on employees and provide breaks to warm up, as needed. Employees should also be advised to bring extra gear to work and change out of wet gear, as necessary. Finally, employers must ensure that employees are reminded to immediately notify supervisors of any signs of injuries or cold stress. The U.S. Department of Labor has provided helpful hints for employers for responsible action when dealing with nasty weather conditions.

Question #2: Whether employers must still pay their employees for a snow day (i.e., business closure on account of inclement weather).

The answer to this question generally rests upon whether the employee is classified as either exempt or non-exempt under the Fair Labor Standards Act (“FLSA”). In an earlier post HRLegalist addressed this question and offered guidance on how an employer should handle employee pay on a snow day.

Question #3: Whether the closure should count towards eligible employees’ FMLA leave?

While the Family and Medical Leave Act (“FMLA”) does not squarely address whether an inclement weather closure should count against an employee’s leave entitlement, the general rule for counting FMLA leave during a holiday week most likely applies.

For inclement weather closures lasting less than one week, an employer can “count” a snow day towards an eligible employee’s FMLA leave allotment if the employee was out on FMLA leave the entire week. In an intermittent or partial week FMLA context, an employer can only “count” a snow day towards an eligible employee’s leave allotment if the employee was expected to report to work on that day (i.e., if the employee is scheduled to work Wednesday through Friday and the storm occurs on Monday, the employer cannot count Monday’s closure towards the employee’s leave).

For inclement weather closures that exceed one week’s time, employers are not permitted to count the time against an eligible employee’s FMLA leave allotment.

Insights for Employers:

Employers in the Northeast are accustomed to business closures on account of inclement weather; accordingly, employers should ensure that supervisors and human resources professionals are trained to act proactively in the face of inclement weather emergency. Planning ahead, through proper training and the implementation and active use of inclement weather and telecommuting policies, can help employers cope with what could otherwise be an “unproductive” snow day.

As always, HRLegalist urges our readers to consult legal counsel if you have any questions about employee safety, and issues arising out of inclement weather emergencies in the workplace.