I felt like I was in my favorite Stephen King novel, The Stand, when that storm hit a couple weeks ago.  Gas, food, electricity were not to be had.  Roads were closed due to downed electric lines and quite a few very large trees.  I know, because I was trying desperately to get home, as were many other forty-something ladies out to enjoy a particular movie premiere.  Darn you Mother Nature.

One of the most difficult problems faced by employers and employees alike during the aftermath of this perfect storm was the inability to communicate.  Even smoke signals were not a viable means of communication in our damp, dark state.  Did your business lose power?  Did you have to shut down for a couple of days?  How did you let your employees know what was going on?

In all likelihood, you weren’t able to reach your employees – at least not all of them.  A phone tree amongst your employees and leaving an outgoing voice message on your business answering machine to provide instruction to employees calling in generally only work if there’s electricity.  While cell phone service was spotty at best, social media, like tweets, Facebook status posts, and email might have reached some of your employees, but not all.  Planning ahead for these types of events is the solution, but unlike the storm, it’s not perfect.

To make it more so, you should consider drafting a policy that addresses emergency weather conditions so that employees know what is expected of them.  The policy should address communication by outlining your employees’ responsibility to call in or check social media or participate in that phone tree I mentioned.  It should also address attendance expectations.

As a result of not being able to communicate with your employees (and vice versa), attendance issues will arise.  If you have an employee who misses work because he or she was called up by the National Guard or Reserves to assist with storm response efforts, you must comply with USERRA which prohibits discharge or denying any benefits of employment because of the performance of service.  If a state of emergency is declared by the governor of your state, there may be laws, like the one in Pennsylvania, which prohibits employers from disciplining or discharging employees for failing to report to work due to road closures during an official state of emergency.

The next question is how to treat employee absences if you’re open for business following a weather emergency.  If you choose to make exceptions regarding the requirement that employees report to work for matters such as childcare or transportation, then you must make sure that you apply such exceptions consistently to avoid discrimination claims.  The FLSA does not require you to pay non-exempt employees for time missed due to a weather emergency.  Exempt employees may be put on a leave of absence without pay or charged accrued vacation for failure to report, but only for full day increments.  If an exempt employee arrives halfway through the day, you may not dock their pay.  If your business is closed for the day, you may not dock exempt employees.  The DOL had this to say on the topic:

The Department of Labor considers an absence due to adverse weather conditions, such as when transportation difficulties experienced during a snow emergency cause an employee to choose not to report to work for the day even though the employer is open for business, an absence for personal reasons.  Such an absence does not constitute an absence due to sickness or disability.  Thus . . . an employer that remains open for business during a weather emergency may lawfully deduct one full-day’s absence from the salary of an exempt employee who does not report for work for the day due to the adverse weather conditions. . . . Please note, however, that deductions from salary for less than a full-day’s absence are not permitted for such reasons under the regulations.

Now’s the time to start planning ahead if you were caught unprepared by this last storm.  By the way, for any future Jeopardy contestants, that particular kind of storm we experienced is called a “Derecho” – something I learned from our firm’s on-the-ball chief information officer as he battled communications issues at our home office.  Develop and communicate your policy to your employees, and that’ll be one less thing to worry about when the next Derecho blows through.

Vanessa Towarnicky's primary focus is in the area of labor and employment law. She has been involved in representing clients in various employment cases, including sexual harassment; deliberate intent; age, race, and disability discrimination; wrongful discharge; and various other employment-related torts. She is admitted to various state and federal courts as well as the Third Circuit Court of Appeals and Fourth Circuit Court of Appeals.
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