Inclement Weather Policy: Make Sure You Don’t Get Snowed!

After the East Coast faced down the “bomb cyclone”and polar vortex and with more storms on the horizon throughout the US, many employers are fielding questions from managers and employees about whether or not their company has an inclement weather policy and when they will be closed for business. If you have such a policy in place and/or are thinking of implementing one as part of a periodic employee handbook review and update, here are some things you should consider in drafting the policy language:

1. Define the Parameters for Closings – Get your management team together to discuss the business needs and identify essential employees needed to keep production going, meet compliance thresholds, supervise shifts, etc.  While you do not need to put in writing the exact conditions that might trigger closing either for the entire day or some portion of a day, you should have an agreement by leadership regarding who will be responsible for making the determination on when a closure is warranted.
2. Research Your Business Interruption Insurance Provisions – Your Business Insurance may include coverage that pays for any lost business income due to a covered loss.  This may include coverage for things such as power outages or Civil Authority declarations whereby a government authority enacts an evacuation or prohibited access order for the area where your business is located.  The language in the insurance clauses can be tricky with respect to the exact wording used in issuing the order and defining a covered loss to property that has triggered a restriction of access.  It can also be quite difficult to prove an actual loss, so record-keeping is key as is discussing your policy with your insurance agent prior to a loss to ensure you fully understand your coverage and whether or not you can recoup any potential lost income that can help you to determine whether or not you can afford to pay all of your employees and how much.
3. Establish Pay Guidelines for Exempt vs Non-Exempt Employees – FMLA labor laws require that any exempt employees receive their regular salary even if they only work a few minutes in a day and regardless of whether they conduct their work in a corporate office or remotely.  Generally you are not required to pay hourly employees except possibly in cases where you have required them to report to work and then sent them home, which will depend on your state laws. Be sure to define which employees will be eligible to receive their pay and also stipulate the number of hours for which they will receive their pay. If you are in a position to pay employees even when your business closes, you may want to offer this benefit even if it is only a partial payment as it may set you apart from your competition in the war for talent.
4. Review Your Local Reporting Time Pay Laws – As noted above, some states (California, Connecticut, District of Columbia, Massachusetts, New Hampshire, New Jersey, New York, Oregon – minors only, and Rhode Island) require that employees receive pay for a set number of hours if they are required to report to work even if they only come in for 15 minutes and are then sent home or if they were scheduled for a set number of hours that day.  Typically the amount is around 2-4 hours and may require pay at the employee’s stipulated rate or at minimum wage.  You should be sure to make reference to the reporting pay in your policy and stay apprised of any changes to your local labor laws that affect your obligations to compensate your employees. Reporting pay laws may also exclude certain types of workers such as local emergency personnel – police, fire, EMT and road crews, etc.
5. Be Aware of Government Statutes for Travel Warnings/Advisories/Bans and Resulting Fines – As an employer, you are not allowed to ask your employee to do anything illegal.  Therefore, if your state has established regulations restricting travel when a government authority makes an emergency declaration, your company could be liable in a suit should you require employees to come to work during such an event.  In Delaware, companies are not required to pay employees when the Governor declares a state of emergency restricting travel; however, the laws there stipulate that employees cannot be disciplined for adhering to the state-of-emergency order.  While laws may not prevent you from disciplining an employee for not showing during a state of emergency, you very well could be subjecting the company to a wrongful termination or other suit should you discipline them for following the law.  (Here are a few of the state laws relating to travel restrictions: Massachusetts carries a $500 fine;  New Jersey is up to $1000 and 6 months in jail; Delaware has a Level 2 Ban which is $115 first offense, $200 and 30 days in jail second offense and a Level 3 Ban results in a $500 penalty plus jail time up to 6 months.  Ohio law states that those driving during level 3 ban are subject to arrest for fourth-degree misdemeanor $250 fine and up to 30 days in jail, increases to first-degree misdemeanor if person/property is at risk with $1000 fine and up to 180 days in jail).
6. Decide if Employees Can Use PTO or Work Remotely – You may want to consider offering employees the opportunity to use accrued paid-time-off should they feel that conditions are not safe for them to travel to work. If you have employees who can work remotely from home, this can also be another option your employees will appreciate in order to complete their work and stay safe.  Either of these options can be particularly useful to employees with young children when schools and daycare facilities are closed and they may not have alternative child care available.
7. Consider ADA Accommodations – If you have employees with disabilities, you are legally required to make reasonable accommodations for them  in their jobs.  Requesting that an employee covered under the ADA report to work during inclement weather could present challenges not faced by your other employees, so be sure to account for this when drafting your policy language and explore how you might reasonably accommodate them.
8. Determine Your Notification Protocol – If you have decided to implement inclement weather closings as part of your business operations, be sure to set forth the manner in which your company will announce closures and the timing of the announcement.  For example, if your office opens at 9am, you may want to stipulate that a closure will be announced no later than 7am by voicemail, local TV and/or radio to ensure that employees are not getting on the road and traveling to the office only to find that it is closed.  There are some protections for not having to pay an employee who reports to work after an employer has made reasonable efforts to notify them that the workplace is closed.  You should also establish procedures for employees to contact their supervisors or a member of the HR staff when they are unable to report to work, opting to work remotely and/or utilizing PTO based upon weather conditions, etc.
9. Give Your Employees the Benefit of the Doubt – For the most part you should trust your employees to make good decisions that balance completing their work with putting themselves and potentially their family members’ lives at risk by completing their daily commute to report to work.  With a well-defined policy that sets expectations and clearly delineates communication procedures during extreme weather or other critical circumstances, your company is encouraging autonomy and showing consideration for your employees’ well being and that of their family.  This can further strategic efforts in building a positive corporate culture and increasing employee engagement and satisfaction by promoting a foundation of mutual respect, distinguishing your business as an employer of choice dedicated to its employees. You may also want to include language in your time and attendance policy pertaining to communicating with supervisors regarding tardiness during major storm or other similar events since, even with adequate planning for longer commutes, unforeseen issues can arise – accidents, dead car batteries, power outages, etc. – and cause an otherwise punctual employee to be late.
10. Put It In Writing – As with all HR-related matters, once all the details for your inclement weather policy are established, make certain to capture it all in writing.  Even if you will not be closing during bad weather, it is always best to state that in writing so that everyone understands and management has a defined set of rules to work from.  Be sure to follow and enforce your policy without bias as you would any other and make the necessary revisions with proper distribution and employee receipt acknowledgements for any changes.

CheckmateHCM provides employers with an intuitive platform to manage various aspects of their inclement weather and other policies, from mass notifications of closings, to time and attendance alerts and administering PTO requests, to storing electronic copies of employee handbooks with version control and employee acknowledgements.  Our custom-tailored platform can be configured to adhere to your specific corporate rules and protocols and is regularly updated with legislative updates to account for all payroll processing requirements such as reporting pay mandated hours, rates of pay and PTO use and balances.