Working in a winter wonderland

Dean Harris

One of my favorite holiday songs is “Winter Wonderland” — although I like the concept a lot better than the reality of walking in a winter wonderland. With apologies to Felix Bernard and lyricist Richard Bernhard Smith, who wrote this classic song in 1934, for my paraphrase, employees often work in a winter wonderland. That raises questions: How should employers handle weather closures and sickness?

What should employers do on snow days?

The answer to this question depends on the answers to two other questions. Is the organization closed for the day? Are employees classified as non-exempt or exempt from overtime?

The answer is simpler for non-exempt employees. The Fair Labor Standards Act only requires employers pay non-exempt employees for the time they work. Some employers provide paid leave when the office is closed as opposed to the office remaining open while employees struggle to get to work. But an employer isn’t required to do so. If the employer chooses not to provide paid leave during closure days — or if an employee chooses not to come to work during inclement weather or other emergencies — the employer may allow employees to use any accrued paid time off benefits available for personal absences.

The answer is a bit more complicated with exempt employees. Employers must pay exempt employees for a closure caused by the employer or operating requirements of the business. This includes business closures caused by weather or such circumstances as power outages. And if the exempt employee chooses to stay home because of bad weather, the employer must pay the employee for the day if the exempt employee performs work during the day. But the employer may require the exempt employee to use paid time off benefits for any time the employee isn’t working, just as it may under normal circumstances in which an exempt employee takes off part of a workday.

But if the office remains open and the exempt employee chooses not to work from home, the employer isn’t obligated to pay the employee for the day the exempt employee doesn’t work. The Fair Labor Standards Act specifically allows pay deductions for full days an exempt employee doesn’t work for personal reasons — as opposed to sickness or injury.

The rise in remote work makes the question of snow days moot to some degree. Employees already working from home may continue to do so while the snow piles up in the yard. Many employees who normally commute to work are equipped to work from home. The employer may allow or direct the employee to do so. But the employer might consider employees who don’t work regularly from home might not have sufficient work available to make this practical.

But what happens if the office is closed and the employee who normally works from home runs out of work because of the office closure? Whether the employer directs the employee not to work at all because of the paucity of work or directs the employee to work and the work runs out during the day, the result is the same. The employer is obligated to pay the employee for the full day since no work is available to the employee because of the employer’s operating needs, not because of the employee’s choice not to work for personal reasons.

My employee says he’s sneezing and coughing only because of mistletoe and holly allergies. Can I send home employees who appear sick? Can I require them to use sick leave?

Yes, an employer may send home employees who appear to be sick with communicable diseases. Employers should make available sick leave or other paid leave just as it would for an employee call-in. But the employer should make sure it takes this approach consistently with all employees who appear to have communicable diseases.

Watch for more serious issues. I spoke with an employer whose employee was persistently coughing, but claimed the cough wasn’t caused by a communicable illness. Not every symptom is caused by a communicable disease. Conversely, some symptoms could result from more serious health conditions that aren’t communicable, but could require accommodation under the Americans with Disabilities Act or leave under the Family and Medical Leave Act.

Finally, the Healthy Families and Workplaces Act (HFWA) requires Colorado employers to provide at least one hour of sick and safety leave for every 30 hours an employee works up to 48 hours for a full-time employee. An employer’s PTO or sick leave plan could be more generous. An employer may not require a sick note or other documentation for absences of less than four consecutive days in which the employee was scheduled to work. And an employer may not count protected leave as an absence that would subject the employee to disciplinary measures for poor attendance.

But the HFWA only requires and protects up to 48 hours of mandatory sick leave. An employer with more generous leave allotments may take disciplinary action or require documentation for absences that exceed what the HFWA requires. Employers who offer PTO instead of separate sick and vacation leave should inquire of the employee whether an absence is for an HFWA-covered reason so the employee knows what leave is protected by the HFWA.

Prepare now for a successful winter season. The Employers Council makes available to its members resources on these questions and other seasonal employment issues. Employers Council consulting and enterprise level members may speak directly with human resources professionals and employment attorneys at any time.