Winter is coming. And winter brings snow, ice, sub-zero temperatures, and employee absences caused by those conditions. An employer will want to take steps to ensure its employees know the consequences of missing work due to inclement weather before the snow starts to fly.
The United States Department of Labor (“DOL”) issued two opinion letters (see links below) dealing with this question. Although opinion letters are not binding precedent, they do help provide insight as to how the DOL might rule and courts often defer to their opinions. The information below provides a general summary of an employer’s duties with regard to its employees’ absences caused by inclement weather. These opinion letters only represent general views of the DOL and do not represent the DOL’s conclusion as to any one situation. Facts are important and could change the analysis.
In general, nonexempt employees only receive pay for the time actually worked. As such, an employer is generally not required to pay its nonexempt employees for absences caused by inclement weather. However, the employer may allow its nonexempt employees to use their vacation or leave time to cover the missed day without losing a portion of their salary.
Whether or not an employer is required to pay its exempt employees depends on the employer’s actions during the snow day. For example, if a business is closed for an entire day, the DOL would take the position that the employer could not make deductions for full day absences. On the other hand, the DOL takes the position that an employer may, however, require its exempt employees to use their vacation time or other available leave time to cover the missed day. The complication occurs if the employee has not accumulated sufficient vacation or leave to cover the absence. For that complication, the DOL would take the position that the employer could not deduct that employee’s salary as an employer cannot require its exempt employees to take leave without pay.
Complicating the issue further, if the employer’s business remains open, the DOL would take the position that the employer could dock the salary of an absent exempt employee—even if the employee missed the day due to the weather conditions. The DOL considers such absences as an absence for personal reasons and not an absence for sickness or disability. In this situation, the DOL would permit the employer to allow the absent employee to use vacation or leave time to cover the missed day.
Major tip: Be careful not to deduct partial pay for partial absences; as such an arrangement could make an employee non-exempt from overtime under the Fair Labor Standards Act. Be sure to check with your labor counsel for guidance.