I have received quite a few requests for inclement weather policies of late, and since the topic of “snow days” frequently arises this time of year, I wanted to provide some (hopefully) useful information for employers. The question of whether an employer is obligated to pay employees for “snow days” depends largely on two questions:
- Is the employee exempt (salaried) or non-exempt (hourly)?
- Is the office open or closed?
Is the Employee Exempt (Salaried) or Non-Exempt (Hourly)?
If an employee is exempt (i.e., employed in a bona fide executive, administrative, or professional capacity and paid on a salary basis of not less than $455 per week), then the general rule of thumb is that the employee must be paid his or her full salary for any week in which he or she performs any work, regardless of the number of days or hours worked. Of course, there are certain exceptions to this general rule, including FMLA leave, the first or last weeks of employment, where no work is performed for an entire workweek, or, as discussed below, if the office is open and the exempt employee elects to not report to work for a full work day.
If an employee is non-exempt (i.e., employed on an hourly basis and subject to the minimum wage and overtime requirements of the Fair Labor Standards Act (FLSA)), the employee need not be paid for time not worked regardless of whether the office is open or closed. (Keep in mind that whether an employer is obligated under the law to pay and whether it should pay hourly employees to keep employees happy are separate issues).
Is the Office Open or Closed?
Next, the answer to the question of whether the office is open or closed, affects only exempt, salaried employees, as non-exempt, hourly employees need not be paid for time not worked. If the office is open, but there is transportation difficulty, fear of driving in weather conditions, etc., causing an exempt employee to voluntarily elect not to come in at all, then the employer may deduct a “full day” absence from the employee’s salary.
In the event the office is closed, meaning that the employer officially shut down operations due to inclement weather or other emergency and told folks to go home or not come in at all, the employer is still obligated to pay all exempt, salaried employees their full salary. Simply put, no deductions can be made if exempt employees are “ready, willing and able to work,” but there just happens to be no work available.
Finally, a couple of caveats:
- Employers must always be mindful of the “full day” rule. If an exempt, salaried employee is voluntarily absent from work for a partial day or for 1 1/2 days, the employer cannot deduct for any partial day absence and can only deduct for an actual “full day” missed. Again, a “full day” deduction, however, is only permissible if the office is open and the employee voluntarily elects to stay home. It is not proper to make a “full day” deduction if the office is officially closed, as the employee has no choice in the matter.
- Likewise, while there is no prohibition on employers asking both exempt and non-exempt employees to use personal, sick or vacation time for missed hours or days due to a “snow day,” in no event should an exempt, salaried employee’s time be treated as unpaid when the office is officially closed (even if an employee has no accrued time off benefits).
Example: Jane is a salaried employee. ABC Company decides to officially close the office due to a blizzard and notifies all employees to either not come in at all or to leave early. ABC Company’s policy is that employees must apply PTO time to the time missed, but Jane took a trip to Aruba recently and is currently out of accrued PTO time. Even though she has no accrued time off, ABC Company still must pay Jane for the “snow day.”
The information above is in line with two opinion letters issued by the Department of Labor on the proper payment of wages under the FLSA when inclement weather occurs: Opinion Letter FLSA2005-41, October 24, 2005 and Opinion Letter FLSA2005-46, October 28, 2005. Note that the DOL has announced that it will no longer issue Opinion Letters; however, existing Opinion Letters still serve as interpretative guidance absent a subsequent Administrative Interpretation providing otherwise.
Inclement Weather Policy
Lastly, should employers have an inclement weather policy in place? YES. Employees and management alike are well-served with a clearly drafted policy on how the company will compensate its employees for “snow days.” Here is a sample inclement weather policy: Sample Policy.pdf with the footnote that it should be used as an example only. Given the various nuances discussed above and with the FLSA generally, any inclement weather policy should be carefully drafted according to a company’s specific needs and reviewed by competent employment counsel before being adopted and distributed to employees.