For some, snowflakes bring thoughts of snowmen and sleigh rides. For others, they signal the beginning of closed business days, employees arriving late to work, and all sorts of other issues—all the result of inclement weather! Since many parts of the United States are currently dealing with the effects of, what-is-being-called, the “Polar Vortex,” we decided to take a look at some common headaches for employers caused by bad weather and provide you with some helpful guidance.
The National Institute for Occupational Safety and Health Addresses Cold Stress
Extreme cold temperatures have disastrous effects on humans and their ability to work well. The National Institute for Occupational Safety and Health (“NIOSH”) put together a good summary of cold stress conditions, and how employers can take steps to protect their workers who must work outside in freezing temperatures.
Below are NIOSH’s tips for employers to protect workers from cold stress:
- Schedule maintenance and repair jobs in cold areas for warmer months.
- Schedule cold jobs for the warmer part of the day.
- Reduce the physical demands of workers.
- Use relief workers or assign extra workers for long, demanding jobs.
- Provide warm liquids to workers.
- Provide warm areas for use during break periods.
- Monitor workers who are at risk of cold stress.
- Provide cold stress training that includes information about:
- Worker risk
- The importance of monitoring yourself and coworkers for symptoms
- Personal protective equipment
NIOSH’s recommendations for workers:
Workers should avoid exposure to extremely cold temperatures when possible. When cold environments or temperatures cannot be avoided, workers should follow these recommendations to protect themselves from cold stress:
- Wear appropriate clothing.
- Wear several layers of loose clothing. Layering provides better insulation.
- Tight clothing reduces blood circulation. Warm blood needs to be circulated to the extremities.
- When choosing clothing, be aware that some clothing may restrict movement resulting in a hazardous situation.
- Make sure to protect the ears, face, hands and feet in extremely cold weather.
- Boots should be waterproof and insulated.
- Wear a hat; it will keep your whole body warmer. (Hats reduce the amount of body heat that escapes from your head.)
- Move into warm locations during work breaks; limit the amount of time outside on extremely cold days.
- Carry cold weather gear, such as extra socks, gloves, hats, jacket, blankets, a change of clothes and a thermos of hot liquid.
- Include a thermometer and chemical hot packs in your first aid kit.
- Avoid touching cold metal surfaces with bare skin.
- Monitor your physical condition and that of your coworkers.
NIOSH’s webpage on its recommendations for protecting workers from cold stress can be accessed here.
The Occupational Health & Safety Act Protects Employees Working in Cold Weather
The Occupational Health & Safety Administration (“OSHA”) gives employees the right to refuse unsafe work and the right to be free from retaliation if they complain. When it comes to cold weather, there are a few areas where OSHA becomes relevant for employers.
The first, commercial drivers. The Surface Transportation Assistance Act (“STAA”) prohibits an employer from disciplining or firing a commercial driver for refusing to drive a commercial motor vehicle on the highways in violation of Federal safety regulations. The STAA also prohibits an employer from disciplining a driver who refuses to operate a commercial vehicle when he has a “reasonable apprehension” of serious injury to himself or the public because of the vehicle’s unsafe condition. When a driver claims that he has been wrongfully disciplined or fired in violation of the STAA, the driver’s case may be heard by officials of the U.S. Department of Labor (DOL). If an employer illegally fires or disciplines a driver for refusing to drive a commercial vehicle in dangerous weather, the driver can seek relief under the STAA, which OSHA handles. FR Doc. No: 2012-17994. OSHA investigates any such complaint filed under the STAA and issues a decision. A successful claimant is entitled to reinstatement, expungement of his or her work record, back pay, other damages, attorney fees and legal costs.
Next safety issue for concern, snow accumulation. Some employers may send employees on their rooftops to remove accumulated snow. Unfortunately, some employers may not be aware of the applicable fall protection requirements, which are even more important during and after winter storms. Other OSHA issues associated with snow accumulation on rooftops include, improper skylight covers; employees falling through skylights; lack of guard rails; ladder safety; the use of man lifts, scissor lifts and buckets, and others.
To address these and other concerns, OSHA released a hazard alert titled, “Falls and Other Hazards to Workers Removing Snow from Rooftops and Other Elevated Surfaces.” The alert provides helpful guidance on how employers should instruct employees to remove snow from rooftops properly and also sets forth OSHA’s standards that require employers to evaluate hazards and protect workers from falls when working at heights of 4 feet or more above a lower level (1910.23) or 6 feet or more for construction work (1926.501).
The National Labor Relations Act Protects Workers Who Refuse to Work Due to Unsafe Work Conditions in Certain Circumstances
Similar to their rights under OSHA, employees have the right to refuse unsafe work under the National Labor and Employment Act (“NLRA”). Along with this provision, the NLRA prohibits employers from retaliating against workers who refuse to work due to unsafe work conditions if the following three criteria are met: (1) The worker acted in good faith, honestly believing that it would be dangerous to work under current conditions; (2) the refusal involved more than one worker; and (3) the refusal cannot have been part of a work stoppage designed to get around a “no strike” clause in a union contract. If an employer does retaliate, the employee may file an unfair labor practice charge with the NLRB within 180 days of the alleged retaliation.
When this issue comes up in the context of employees refusing to drive to work, an employee can be fired for not getting to work in bad weather unless the employer has agreed that the weather is too bad for employees to attempt to drive to work.
The Fair Labor Standards Act Dictates When Employees Must be Paid When Businesses Close for Cold Weather
First up, pay practices. Both federal and state law govern how employees must be paid and employers must take care to ensure compliance with the laws, even when cold weather strikes.
Let’s start with the easiest class of employee to address—the nonexempt, or hourly, employee. Under the FLSA, employers are only required to pay nonexempt employees for hours spent performing actual work. An employer is not obligated to pay a nonexempt employee for time not worked, not even when the employee was scheduled to work and was precluded from working due to bad weather or when the employee was sent home early because of bad weather. This means, if a business fails to open or shuts down early and sends nonexempt employees home mid-shift, the employer is only required to pay the employee for the time actually spent working.
Keep in mind, however, some states have “report-in laws” that require an employer to pay an employee if a nonexempt employee is scheduled to work and sent home early, like California. These laws provide guaranteed pay for nonexempt employees who show up for work and are then sent home. While these states are limited in number (and Ohio is not one of them) employers in these states and multi-state employers should make sure they are familiar with report-in laws and comply with them.
On the other hand, exempt employees almost always must be paid for days off due to inclement weather. The rule to remember is that exempt employees must be paid for the entire week for any week that they work at all, or the employer risks losing the exemption. The FLSA provides an exclusive list of the instances in which an employer may dock an exempt employee’s pay. See 29 CFR § 541.602. As you can see, business closures are not one of the allowed instances. So, if an employer sends an exempt employee home because of inclement weather or fails to open for the day entirely, the employer must pay the exempt employee for the entire day. The only time an employer is allow to not pay an exempt employee because of inclement weather is when a business closes for an entire week and the exempt employee has not performed any work during that week. If the exempt employee worked even one day that week, the employer will have to pay the employee for the entire week.
Although employers are required to pay exempt employees for most inclement weather closures, they may require exempt employees to use their paid time off, e.g., vacation or personal time, during this time. Consider including a policy in your employee handbook to address this issue. Note, however, that if the exempt employee does not have enough paid time off in his or her leave balance to cover the absence, the employer is not allowed to deduct the difference from the exempt employee’s salary.
The situation changes, however, when the business is open and the exempt employee chooses to stay home. For days where an exempt employee elects not to report to work, an employer may deduct accrued leave for such absences from the employee’s leave bank. If the exempt employee is not yet eligible for accrued leave or has exhausted such leave, an employer may make reductions from pay for whole day absences. This is typically covered under 29 C.F.R. § 541.602(b)(1) exemption, since it is usually deemed “personal time, other than sickness or disability.”
Here are links to two Department of Labor Opinion letters that may also be helpful in navigating this issue: 2005-46 Salary Docking for Weather Related Absences and 2005-41 Leave Taken During Inclement Weather.
So, be safe and bundle up. It’s cold outside!