Hurricanes. Snowstorms. Wildfires. Although the events differ based on where an employer is located, such natural disasters pose uniform questions about how to handle potential closures and payment to employees who may not be able to make it into work because of extreme weather or other forms of emergency.
Sometimes called “calamity days,” such disruptions pose practical problems – Should we close the office? Can people work from home? – as well as legal ones.
Employers need to establish a written policy for calamity days with an aim toward setting expectations with regard to emergency situations. The policy should begin with a definition of the term, such as “the closure of an office by reason of hazardous weather conditions, law enforcement emergencies or disease epidemic.”
The definition should be tweaked depending on the nature of the employer’s business and the geographic location, possibly including the events that will trigger a closure (a specific snowfall amount, a declaration of emergency by government officials or an electrical outage or loss of heat, for example).
Other policy details should include how employees will be contacted and informed in the event of such a day, whether and how employees will be paid for calamity days and instructions on how a worker should proceed if he or she cannot make it into the office.
In terms of legal considerations, several federal statutes come into play.
The Occupational Safety and Health Act’s promise of “safe and healthful working conditions” applies to all national employers with one or more employees. The statute places the responsibility to protect employees from unreasonable danger in the workplace (including natural phenomenon) on the shoulders of employers. Employers should keep this requirement in mind when making decisions about asking employees to come into work in the event of severe weather conditions or other emergencies.
What about paying employees for calamity days? The analysis begins with the Fair Labor Standards Act. The Department of Labor has stated that if employers close for less than a full workweek because of inclement weather or a related emergency, employees need to be paid their normal salary. Closure for a full workweek or more relieves the employer from paying exempt employees.
If an exempt employee elects to take time off under such circumstances, the employer may require the use of vacation time or other paid leave or deduct from the worker’s salary if they don’t have any paid leave remaining. This scenario often presents itself as a snowstorm that results in schools or day care providers closing, requiring parents to remain home with their children even though the employer remains open.
For non-exempt employees, different rules apply. Generally speaking, hourly employees do not need to be paid if they do not come into work, even if the employer closes the business because of an emergency. A partial closing, where an employee reports for work and the employer later decides to halt operations, does require payment for the hours worked.
Adding to the calculus: state laws, which have varying requirements. Some states may require compensation for non-exempt employees in certain circumstances, such as reporting time pay laws or jurisdictions that have “secure” or “predictable” scheduling laws. Many of the state and local laws do feature exceptions for extreme weather scenarios or other emergencies, however.
Employers also have the option to permit employees to work from home (where possible) or pay employees for such days. Although not legally required, these options can cement a better relationship with workers.
Even after a natural disaster ends, employers may face tricky issues.
The Americans with Disabilities Act provides that workers who are physically or emotionally injured as a result of a catastrophe may be entitled to reasonable accommodation by the employer, as long as it would not place undue hardship on the employer’s business operations.
Similarly, the Family and Medical Leave Act permits employees to take leave for a serious health condition caused by a disaster, not just for themselves but to care for a child, spouse or parent (such as the need to help someone who requires refrigerated medicine or medical equipment in a power outage).
Although extreme weather and emergencies will always present concerns, employers can minimize the uncertainty and unknowns of calamity days with some planning and organization.