The FLSA and Inclement Weather Closures for Private Businesses

The Northeastern part of the United States recently experienced a blizzard, which led to many businesses closing doors and telling employees to stay home. However, for some other businesses, which chose to stay open, employees called in saying they could not make it to work. While Kansas has not had a blizzard (yet), the State is prone to inclement weather from time to time. Employers need to be aware of the options they have in both scenarios described above and should remember that the Fair Labor Standards Act (FLSA) influences how employers are supposed to handle both situations with regard to employee wages. Furthermore, the Department of Labor (DOL) has written an opinion letter (Oct. 24, 2005) on both of these scenarios and is explained below.

Before analyzing both scenarios it is important to remember that the FLSA regulates minimum wage and overtime pay, but has exemptions for both, for an employee employed in a bona fide executive, administrative, or professional capacity. If an employee qualifies for an exemption, they may be paid on a salary basis and such salary is not subject to reduction because of variations in the quality or quantity of the work performed. Furthermore, if an employee is ready, willing and able to work, deductions may not be made for time when work is not available. However, deductions from pay are allowed if an employee is absent from work for one or more full days for personal reasons, other than sickness or accident.

Scenario #1: An employer closes its business because of inclement weather.

• Exempt Employees

If an employer closes its business because of inclement weather, the employer should pay an exempt employee her full salary, as long as the business is closed for less than one full workweek. If an employer were so inclined, the employer could require the exempt employee to use vacation time or paid time off (PTO) for the time that the business is closed due to inclement weather. However, an employer should consider the effect on employees morale if the employer were to require its employees to use PTO for days when the employer determined that the business should be closed.

If an employer does decide to have employees use their PTO and an employee’s PTO would not cover the time the business was closed, the employer could allow the employee to carry a negative PTO balance until she accrued additional leave.

• Non-Exempt Employees

Employees who are non-exempt get paid based on the time they actually work. Therefore, if a business closes because of inclement weather, the employer will not pay the employee for that day, because the employee did not work.

Scenario #2: An employer stays open during inclement weather, but some employees cannot make it in.

• Exempt Employees

Employers who decide to stay open during harsh weather conditions run the risk of employees not being able to make it into work. If an employee is unable to make it into work because of the weather, then the employer may require the employee to use PTO. In the 2005 DOL Letter, it stated that an absence due to inclement weather does not constitute an absence due to sickness or accident. Therefore if an employee is absent because of inclement weather, then she is absent for personal reasons. It should be noted that if the office is open, and an exempt employee has no accrued PTO to cover her time off, she may be placed on leave without pay for the day she failed to report. However, if the employee was gone for less than a full day, then there cannot be a deduction from salary.

• Non-Exempt Employees

As before, non-exempt employees are paid based on the time they work and therefore do not need to be paid for days they cannot make it into work because of bad weather.

Employers should think about implementing a written policy (if they do not already have one) concerning inclement weather based closures and how it will or will not affect their employees’ wages or PTO. It is never a bad idea to have open and clear channels of communications between employer and employees and a written policy is often the most effective.

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