Yet another massive winter storm is threatening snow and freezing rain from Colorado to the East Coast this week. Do you know what your obligations are to employees who cannot get to work on these bad weather days?
Q: We are expecting more snow and ice this week and anticipate that employees may have a difficult time getting to work. Several of our employees have already used up their paid days because of bad weather this winter. How should we deal with these absences?
A: If you have operations in areas that experience severe weather, such as winter storms, flooding, or hurricanes, you should include provisions in your policies for weather-related absences. Most employers discuss weather-related absences in their attendance policies. Any policy dealing with attendance during periods of inclement weather should give employees an incentive to get to work and should distinguish between nonexempt and exempt employees.
Nonexempt employees (those employees who are covered by, and not exempt from, the minimum wage and overtime provisions of the federal Fair Labor Standards Act (FLSA)) generally only have to be paid for time actually worked. Accordingly, many employers do not pay nonexempt employees for weather-related absences, although the absence usually is excused. Some allow nonexempt employees to use accrued paid vacation or personal days so that they do not lose compensation. In exceptional situations, some employers pay all nonexempt employees for the day but recognize the efforts of those who worked by providing them with an extra floating personal day.
Some employers allow nonexempt employees to make up the missed time. However, if the employees make up the time in a week in which they also work 40 hours, you will owe them overtime for the additional hours worked over 40. For this reason, most of these employers do not allow the make-up time unless it is scheduled within the same workweek as the time missed. But, even this approach is likely to cause scheduling headaches.
Exempt employees should be handled differently. They are exempt from the FLSA’s minimum wage and overtime requirements because of the nature of their job duties and the fact that they are paid on a salary basis. The most common exempt classifications include executive, administrative, and professional employees.
Under the “salary basis” definition, exempt employees generally must receive their full salary for any week in which they perform work, without regard to the number of days or hours worked. Deductions may be made for less than a full week only in limited circumstances, such as for full-day absences for personal reasons or under a bona fide sick policy. However, deductions for less than full days are not allowed under any circumstances.
Deductions for absences of a day or more because of bad weather are not specifically allowed for exempt employees by the FLSA regulations. However, two Department of Labor (DOL) opinion letters indicate that you can require exempt employees to use paid leave when they are absent because of weather related conditions. In addition, the DOL opinions indicate that it may even be okay to make deductions from exempt employee pay for full-day weather-related absences in certain circumstances.
In the letters addressing snow day absences, the DOL indicated that if an employer is open for business and an exempt employee does not come to work that day, the employer may require the employee to use a paid vacation day or dock the employee for a full-day absence. According to the agency administrator, when a vacation day is used, the employee still receives the same guaranteed salary for the week, so the salary basis is maintained.
To make the case for docking an exempt employee’s pay, the agency reasoned that any absence caused by inclement weather is considered an absence for personal reasons if the employer’s business is open. The employee in effect chooses to stay home instead of reporting to work when the business is open.
If your organization is closed for the day, the opinion letters indicate that you cannot make deductions for full day absences from exempt employee pay because the FLSA regulations specifically do not allow deductions for absences occasioned by the employer or the operating requirements of the business. Under the regulations, no deductions are allowed when work is not available. However you can require that exempt employees use their paid time off (PTO) since they then would receive their entire salary. But, if you do not have any accrued PTO time, you still cannot make a deduction from their pay.
Distributed by Sunburst Software Solutions, Inc. with permission from:
HR Matters E-Tips, copyright Personnel Policy Service, Inc., Louisville, KY, all rights reserved, the HR Policy and Employment Law Compliance Experts for over 30 years, 1-800-437-3735. Personnel Policy Service markets group legal service benefits and publishes HR information products, including the free weekly electronic newsletter, HR Matters E-Tips (www.ppspublishers.com/hrmetips.htm). This article is not intended as legal advice. Readers are encouraged to seek appropriate legal or other professional advice.