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Nyemaster Goode Top 10 List: No. 4 – Let it Snow, Let it Snow, Let it Snow…

By Mary Funk

Along with the holidays, this time of year often brings winter weather issues for many employers. How do you handle weather related closings? What if your business remains open but employees cannot get to work? Do you pay employees under such circumstances?

The best defense to winter weather is a good offense….whether it is having bags of salt in your car or publicizing your expectations to your employees. We recommend you remind employees of your winter weather policy or, if you don’t have one, that you issue a memo explaining what will happen if they decide on their own that they cannot get to work or if you, as an employer, decide to close for the day or part of the day due to adverse conditions.

The biggest issue is to accurately pay employees under such circumstances. For non-exempt employees, it is easy. You only pay them for the hours they work. But what about exempt employees? Can you deduct from an exempt employee’s pay if the office is open but the employee decides it is not safe to travel to work?

The Department of Labor considers an absence due to adverse weather conditions, such as when transportation difficulties experienced during a snow emergency cause an employee to choose not to report for work for the day (even though the employer is open for business), an absence for personal reasons. With that being the case, an employer that remains open for business during a weather emergency may lawfully deduct one full-day's pay from the salary of an exempt employee who does not report for work for the day due to the adverse weather conditions. (Of course, should the employee have PTO time available, such paid leave could be used to cover such an absence if your policy permits it.) Such a deduction will not violate the salary basis rule or otherwise affect the employee's exempt status. Remember though, an employer cannot deduct from an exempt employee’s salary less than a full-day's absence. If an exempt employee is absent for one and a half days due to adverse weather conditions, the employer may deduct only for the one full-day absence, and the employee must receive a full-day's pay for the partial day worked, for the employer to meet the “salary basis” rule. See 29 C.F.R. § 541.602(b)(1).

On the other hand, if the employer decides to close because of inclement weather, the employer may not make deductions “for absences occasioned by the employer or by the operating requirements of the business.” Under that circumstance, the employer must pay an exempt employee “the full salary for any week in which the employee performs any work without regard to the number of days or hours worked,” because “deductions may not be made for time when work is not available.” See 29 C.F.R. § 541.602(a).

Can you require employees to take PTO time for adverse weather conditions? The short answer is yes, because PTO is an agreement between the employer and employee and is not directly policed by any governmental agency. But employers should make sure they are complying with any applicable handbook policies and applying those policies in a non-discriminatory way. Making sure that any such requirement is spelled out in a written policy distributed ahead of when the need for the policy arises, will prevent misunderstandings and problems down the road.

So, buckle up, be prepared, and stay safe out there!



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