Account for Mother Nature by establishing a weather closing policy
Even here in Maine, where we take pride in not letting winter slow us down, there are days when it just doesn't make sense to get out of the house. Employers may want to put a policy in place to address those occasions when, due to the weather, the workplace must be closed or particular employees can't make it to work. In implementing such policies, employers also will need to take into account differing legal rules regarding leave time and payment to exempt and non-exempt employees under the Fair Labor Standards Act and state law.
A weather/emergency closing policy should address not only winter weather circumstances but any other event that would force a workplace closure. Your policy should address possible grounds for closure, such as snowfall levels, loss of power, hurricanes, governor-declared shut downs and so on. Depending on your circumstances, certain events could constitute an automatic closure or put employees on notice that they need to check in to determine whether there is a closure. Your policy should include means for employee notification, such as call or text trees, radio station notices, website or Twitter notices.
Your policy should also address situations in which particular employees may not be able to make it to work, for example, due to local road closings or power outages or unsafe driving conditions. Advise employees that they should not attempt to travel to work in unsafe conditions, and that they should take steps to notify their supervisors as soon as possible. Your policy should also address whether and to what extent employees may or must work from home if possible.
In addition, there may be times when you will want to close your office early due to weather conditions. Your policy should address how that decision will be made and how employees will be paid.
Paying workers
How you pay your employees in the event of a closing or inability to make it to work will depend on whether they are exempt or non-exempt under wage and hour laws. Remember, wage and hour laws are fact-specific, and these guidelines offer general rules only. In general, you cannot dock an exempt employee's salary unless the employee chooses to miss a full day for personal reasons. So, if you are forced to close your office for the day due to the weather, you cannot deduct a day of pay from your exempt employees' salaries. On the other hand, if your office is open, you may (but you do not have to) deduct a day of pay from exempt employees' salary if the exempt employees are unable to report to work.
If your workplace is closed for only a partial day, or if exempt employees leave early to get a head start on a storm, you may not make a partial deduction from your exempt employees' salary (although you may make a deduction from the exempt employees' paid leave bank).
Conversely, generally in Maine you do not need to pay non-exempt employees for any time that they do not report to work — whether the workplace is closed or whether the particular non-exempt employees are unable to make it to work. However, you may choose to implement minimum report-for-duty pay rules, such as guaranteeing at least four hours of pay if an employee reports to work but is then sent home early due to weather (or other) conditions. Remember that in making these types of decisions, you should consider employee morale and expectations, in addition to what you may or may not do under the law.
In implementing your policy, remember to consider employee injuries and transportation accidents, power outages, responsibility for employee notifications, back-up energy requirements and addressing conditions in and around the workplace. For additional safety information, the Occupational Safety and Health Administration offers helpful information on conditions that lead to stress, frostbite and hypothermia: osha.gov/Publications/osha3156.pdf
Eric Uhl is a partner in the Portland and Boston offices of Fisher & Phillips. His practice includes employment law; he has extensive experience representing management in employment and workplace needs. He can be reached at euhl@laborlawyers.com
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