Remembering the wintery weather of 2011 when the weather outside was frightful, Jack Frost and Dee Ice worry whether ice and snow will force them to close their office this year. Last year, many employees were forced to stay home with their young children whose schools were closed despite the fact that their employers kept the offices open. Frost and Ice have to balance the financial burden of lost work product and paying staff that is not at work, against the ill will and bad morale if staff is not paid. Worse still, Jack and Dee fear that last year some of their employees gamed the system because there was no firm policy in place. What are the obligations of the employees? Where should an employer draw the line when it comes to the safety of an employee vs the employees personal preference to stay home in inclement weather. What should Frost and Ice do?

Rough Sledding. Under federal law, an employer can make whatever rules it wants for its non-exempt employees. The most common practice is to pay the hourly employee only for the hours actually worked. For exempt employees there are two rules. First, if the exempt employee works even part of a day, that employee must be paid for a full day. Second, if the employer chooses to close the office, the employee must be paid. However, if the office is not closed and the employee does not come to work – even if the roads are bad – the employer does not have to pay the exempt employee who is treated as being absent for personal reasons. Even with these rules, don’t forget to review your agreement with your employees, whether it be an employee handbook (likely), an employee contract (less likely), or a union contract (also less likely in Texas).

Tilting the Scales in Your Favor. Jack Frost and Dee Ice should address the effects of severe weather on their businesses before the bad weather strikes to effectively manage their workforce. Now is the time to introduce or modify an adverse weather policy. Frost and Ice’;s inclement weather policy should clearly spell out the rules and employees should be reminded of the company’;s inclement weather policy, including who is responsible for announcing any closures, where the employees can find that information, and who should be notified and when, if an employee has problems getting to work or not coming to work, and by when notice should be given. If non-attending employees will not be paid for bad weather days when they cannot come to work, they should be told well in advance. To avoid employees feeling pressured to risk their safety to get into the office, Frost and Ice may want to consider adding another day or two to the total paid time off (PTO) days to allow for occasional bad weather days. Then the determination of personal safety and care of children becomes the employee’;s sole responsibility. Additional PTO days, however, do not address Jack and Dee’;s fears of lost productivity during this time of hoped for economic healing.

By the way, if Jack Frost and Dee Ice decide to stay open during bad weather, the risks to their businesses may not end with their payrolls and their production. An employee may have recourse to sue an employer for injuries arising from the inclement weather if the employee can prove the employer was negligent in remaining open. Also, for employees who drive company owned vehicles, a whole new set of issues is introduced. Either way, check your business and automobile insurance policies and consult your insurance agent to make sure that your business is covered for inclement weather vehicle accidents and accidents on company property caused by bad weather conditions. Finally, don’t forget to tell your customers and your vendors if you intend to close for bad weather.