by Leanne Mehrman, Sal Simao, and Joanna Rich
Much of the country suffered through punishing storms this past winter, and it has already started again. While fresh snowfall on a crisp winter day can be a beautiful thing, snowy and icy driving conditions are usually a little less charming, especially for employers whose employees aren’t able to get to work. 
Keeping in mind the driving challenges the winter months can bring and their overall impact on workforce availability, employers should probably be asking themselves how they can deal with employees who are affected by some of the less-than-desirable aspects of winter. Here are the answers to some of the most pressing questions about employee pay and benefits that come up when the snow/ice/cold days start to accumulate.
Employment questions answered
Q Does the Fair Labor Standards Act (FLSA) require employers to pay employees who miss work because of the weather?
A The answer to this question depends on whether the employee is exempt or nonexempt.
Exempt employees. If the business closes because of the weather, the FLSA requires employers to pay an exempt employee her regular salary for any shutdown that lasts less than a week. You may not deduct from an exempt employee’s pay based on the quantity or quality of her work or when she is ready, willing, and able to work but no work is available.
Thus, deducting from an exempt employee’s pay for absences due to a business closing that lasts for less than a week would jeopardize her exempt status. However, a private employer may deduct the period of absence from the employee’s paid vacation or paid time off (PTO) as long as she receives her full salary for the week.
If the business remains open but an exempt employee can’t get to work because of the weather, you may deduct from her salary for a full day’s absence. Under the FLSA, you can deduct from an exempt employee’s pay for a full-day absence taken for personal reasons without jeopardizing her exempt status. However, you cannot deduct from an exempt employee’s salary for less than a full-day absence without jeopardizing her exempt status.
Nonexempt employees. Under the FLSA, employers generally aren’t required to pay nonexempt employees for any days they don’t perform any actual work. Thus, you aren’t required to pay employees for days they didn’t come to work or for days the business was closed because of a weather event. That doesn’t apply to nonexempt employees who are paid on a fluctuating workweek basis. Those employees must be paid their full weekly salary for any week during which any work is performed, even if they miss some work because of the storm.
Q Can employers require nonexempt employees who miss work because of the weather to use a vacation day or prevent them from using a vacation day?
A Because the FLSA doesn’t address that question, the answer depends solely on your policy. If your policy requires employees to use any available PTO for any absences, then you may require the use of PTO for a missed day of work. Requiring employees to use PTO during a weather-related shutdown is comparable to forcing workers to use vacation days because of an annual plant shutdown for maintenance. However, if your policy gives employees the choice of whether to substitute PTO for unpaid leave, then you should follow the policy and not require the substitution of PTO.
Similarly, whether you must allow employees to use a vacation day also depends on your policy. For example, if your vacation policy requires advance notice to use a vacation day, you could refuse to allow employees to use vacation time to supplement their pay. However, if you have a PTO policy that allows the use of PTO for all absences, even without notice, you shouldn’t prevent the use of a vacation day.
If there is no applicable policy, you may restrict or require the use of PTO or a vacation day during a weather-related shutdown as long as you apply the restriction or requirement equally in a nondiscriminatory manner.
Q Can an employer require exempt employees to make up work missed because of weather?
A Under the FLSA, you must pay exempt employees the same amount each week regardless of the number of hours they work. Just as you can require exempt employees to work a weekend to finish a project, you can require them to complete work missed because of the weather even if it means working nights or weekends.
However, you do need to be sure you don’t take actions that would show you treat exempt employees like nonexempt workers. For example, always requiring an employee to work 40 hours a week and to make up missed time regardless of the need or circumstances could suggest that you’re actually treating an exempt employee as nonexempt.
Q For how many hours must an employer pay employees who are stranded at work because of weather?
A The answer for exempt employees is simple: If an exempt employee works at all during the week, you must pay her regular salary regardless of the total number of hours she worked. If she becomes stranded at work, even if it’s for days, you’re required to pay her regular salary.
The answer for nonexempt employees is more complex: You must pay a nonexempt employee for all time considered hours worked, and all hours worked must be counted when you determine overtime hours. If a stranded nonexempt employee performs work while he’s stranded, he must be paid for all time worked, but if he is fully relieved of and given time away from his duties—even if that just means going to another room to sleep, read a book, or visit with coworkers—that time isn’t considered hours worked.
Q May an employer count absences due to the storm against an employee’s Family and Medical Leave Act (FMLA) allotment?
A Although the FMLA regulations don’t specifically address natural disasters, the regulations state that if your business activity has temporarily ceased for some reason and employees generally aren’t expected to report to work for one or more weeks (e.g., a school closing during the Christmas/New Year holiday or summer vacation or a company closing a plant for retooling or repairs), the days your activities have ceased don’t count against employees’ FMLA leave entitlement. Thus, it appears that if your business is closed for a week or more because of a storm, the days the business is closed wouldn’t count against employees’ FMLA leave allotment.
If the business is closed for less than a week, the FMLA’s regulation pertaining to holidays likely would apply. That regulation provides, “The fact that a holiday may occur within the week taken as FMLA leave has no effect; the week is counted as a week of FMLA leave.” Similarly, if a business is closed for a day or more during a week in which an employee is on FMLA leave, the entire week would count against the employee’s FMLA leave allotment. If, however, the employee is taking FMLA leave in increments of less than a week, only the days the business is closed and on which the employee would be expected to work can be counted against his FMLA allotment.
Q Is an employer required to pay an employee for on-call time?
A Under the FLSA, if you require employees to be on call while the office is closed because of a weather emergency and they can’t effectively use the time for their own purposes, you must pay them for the on-call time. You aren’t required to pay employees who are at home and available but are able to use the time for their own purposes.
Q What steps can an employer take to ensure employees’ safety upon their return to work?
A The Occupational Safety and Health Administration (OSHA) states that employers are responsible for providing a safe and healthful workplace for their employees. You’re required to protect workers from the anticipated hazards associated with winter weather, such as icy walkways and cold temperatures. OSHA has issued guidelines for working in winter weather www.osha.gov/dts/weather/winter. The guidance is designed to help employers make decisions to protect workers and offers recommendations for safe work practices, appropriate clothing, and prevention of cold- related injuries.
Bottom line
When severe winter weather hits, your first priority should be employee safety. Make sure you understand the ramifications for weather closure decisions and clearly 
communicate your intentions to employees.
Leanne Mehrman is an attorney with FordHarrison, practicing in the firm’s Atlanta, Georgia, office. 
She may be contacted at LMehrman@fordharrison.com.
Sal Simao is an attorney with FordHarrison, 
practicing in the firm’s Berkeley Heights, New Jersey, office. He may be contacted at ssimao@fordharrison.com.
Joanna Rich is an attorney with FordHarrison, practicing in the firm’s Berkeley Heights, New Jersey, office. He may be contacted at jrich@fordharrison.com.