Winter finally arrived in Tennessee following repeated record high temperatures throughout December and the first few days of January. Once cold weather and the first instances of winter precipitation arrive, employers will often ask me if there are any employment law considerations to inclement weather and inclement weather policies. While there indeed are some legal considerations, this is an area where most employers should exercise a degree of common sense.
How to Address Absences. One question I regularly receive is whether the employer can require employee attendance on bad weather days. For Tennessee employers the short answer is yes. There is no law requiring a Tennessee employer to deem an absence as “excused” if due to inclement weather. One caveat to that would be the situation in which a parent or guardian of a disabled person cannot come to work due to the closure of a care facility for that dependent or the employee’s inability to transport the disabled dependent to the care facility. In either of those events, the employer may have to excuse the absence either as FMLA leave, or as an accommodation under the Americans with Disabilities Act (ADA).
It is of course important to understand that when snow and ice hit, a number of factors are present that should cause most employers to be understanding of their employees’ inability to arrive at work. First and foremost is safety. Some employees live in areas that are remote and often difficult to drive through following a snow or ice storm. Some employees relish driving their 4-wheel drive vehicle to work in snow; others dread the thought of driving in such conditions. Employers need to praise the folks who make every effort to arrive at work, while at the same time respecting the other employees’ concerns for personal safety. Some employees, through no fault of their own, learn the evening before or that same morning that their children have neither a school or day care facility to which to take their children. For all these reasons, I encourage employers to relax attendance rules during these times, at least to the extent that weather related absences not be counted as unexcused absences for purposes of disciplinary policies.
Do Employees Have to Be Paid if They Do Not Appear? The answer to this question depends on whether the employee is classified as exempt or non-exempt under wage and hour laws. Generally speaking, non-exempt employees are paid hourly and subject to overtime premium pay for all hours worked in excess of 40 in a work week. These employees need only be paid for time actually worked, so if they are unable to arrive to work on a snow day, there is no legal requirement that they be paid. Exempt employees are paid a set salary each work week, regardless of the number of hours actually worked. For that reason, as long as an exempt employee performs any work activities during that week, she is to be paid her usual salary.
Can Employees Be Required to Take Paid Leave? There are very few legal restrictions imposed by Tennessee law on how an employer can address its paid leave policies. Thus, employers can require that employees be “docked” a day of paid leave for days they fail to appear for any reason, including weather related ones. This is true for both non-exempt and exempt employees. I am aware of some employers that will budget for a certain number of weather related days and provide paid days for employees who could not come to work on a recognized “winter weather” day and grant an additional day of paid leave to those who did. This of course is entirely up to the discretion of the employer.
Providing Transportation to Homebound Employees. Some employers may offer to provide transportation to employees who claim they are unable to drive to work. Are there any issues legal considerations with such an arrangement? The only issue I see in this is the liability exposure for injuries caused by an accident enroute to work. For the transported employee, the exposure is minimal. Tennessee workers compensation law provides that injuries incurred while commuting to and from work are outside the employment relationship. The consideration is a bit different for the transporting employee. If he is injured while picking-up and delivering other employees at the instruction of the employer, his injury is very likely work related and compensable under Tennessee’s workers compensation law.
Providing Housing Close to Work. Employers in certain industries such as hotels and residential facilities (apartments, assisted living facilities, etc.) often have available living accommodations they can “offer” to employees in advance of bad weather in order to have an available work force the next day. While this offer may be based on the best of intentions, it is very important to differentiate between “offering” and “requiring.” In the event non-exempt employees are required or even highly encouraged to come to the workplace or a hotel nearby to be available the next day, they may be treated as “on the clock” or “on call” for wage and hour purposes and entitled to pay while away from home. There are several factors to these type of arrangements that require consideration under federal wage and hour regulations. Any employer thinking about requiring non-exempt staff to stay on-site or nearby in advance of work should discuss that concept with its employment attorney.
I would love to hear about other employment law issues or concerns you may have experienced in the context of winter weather. If you are willing to share those, please send a brief summary to my email firstname.lastname@example.org and I will compile a list of them with my thoughts on each via a follow-up post.