Large areas of the country have been experiencing extreme winter weather with severe cold temperatures and substantial snowfall. As a result, many employees miss work, often through no fault of their own. Questions often arise concerning an employer’s obligation to pay for the missed time. Let’s “shovel through” the issues.

Exempt Employees
Exempt employees are employees who are paid on a salary basis and do not have to be paid for overtime under state and federal labor laws. Typically such employees include executives, managers, professionals (employees who perform functions that require an advanced course of study such as law, accounting or engineering), computer professionals and administrative employees (people who exercise judgment and discretion in performance of their jobs, not just routine clerical functions).

Employers may not “dock” employees for time missed due to weather if the business is closed. However, if the employee decides to take a “personal day,” no salary is required for the day.
Of course if an employee takes too much time off for weather-related reasons, they are subject to disciplinary action, provided the employer treats everybody equally.

Hourly Employees
As a general rule, hourly employees are paid only for hours worked. If they do not work, they do not get paid. This is true even if the missed time is not their fault, such as business closings or disrupted transportation.

Many states require that, if an employee reports to work, the employer must provide either four (4) hours of work or pay. An employee who disregards a closing notice need not be paid. Most employers inform their employees of closings by telephone or through pre-arranged announcements over local radio stations.

Union Employees
Union contracts vary all over the lot. Many contracts provide that employees can use sick, personal or vacation time in order to get paid for snow days. Some contracts even provide for a limited number of paid days for weather, civil disruption or other “acts of God.”

Many labor contracts provide for minimum “reporting pay” for employees who make it in to work, but are sent home before the end of their shift.

Most contracts permit employers to require a “reasonable” amount of overtime. This can be useful to facilitate snow removal or to make up for the work of absentees. However, some contracts require advance notice of mandatory overtime.

Since most labor contracts provide that employees can only be discharged or disciplined for “just cause,” it is unlikely that a company will be able to fire an employee for weather-related absences, even if that employee has already received previous disciplinary action for excessive absenteeism. Similarly, the normal rule in the workplace is that employees must comply with the orders of their supervisors and then grieve those instructions if they feel their rights are being violated. There is, however, a limited exception to this rule if the employee sincerely believes that his/her health or safety is in jeopardy.

There is no substitute for reviewing the specifics of your contract carefully.

Many companies have policies than are more generous than required by law. Employers are generally legally held to their published policies. Therefore, all employers are urged to consult their employment policies for guidance.

If this harsh winter reveals problems with your policies, you should take the opportunity to revise your policies. Policies, however, can be changed prospectively only, never retroactively.

Perry Heidecker is senior counsel for Milman Labuda Law Group PLLC, Lake Success, N.Y. The firm is a full-service Employment Law practice focused on counseling, preventive advice and training, policy and procedure design, representation before administrative agencies, litigation, and appeals.