Inclement Weather Poses FLSA Challenges
When work closes because of inclement weather, exempt and nonexempt employees are treated differently under the Fair Labor Standards Act (FLSA). This is a concept most employees and employers struggle to understand.
It is suggested to review and follow the existing inclement weather policy, should the company have one.
But… What is the actual law?
If the company closes for weather-related reasons, nonexempt employees are not entitled to pay. The employer can allow nonexempt employees to use accrued paid time off, vacation, or sick (PTO) to cover their absences. If PTO is not available, the time off is unpaid. Some employers have mandatory use of PTO policies which is acceptable.
Some employers provide a fixed number of paid inclement weather days per year.
As for exempt employees, the application of weather-related absences is more complicated. In the case where an employer is open for business but an exempt employee chooses to stay home, that employer is not entitled to pay the employee for that day because he/she chose to remove themselves from the workplace for personal reasons. If the employer has a PTO policy and the employee has accrued time, the employer can use the PTO to cover their absence. In the event there is no accrued PTO available, the employer can reduce the employee’s pay for the absence, in full-day increments, without violating the salary-basis test of the FLSA.
However, if the employer decides to close for weather-related reasons, the employee’s full salary must be paid for the week even though he/she may not have worked the full workweek. In this scenario, the employee is available for work, but it is the employer who has made the work unavailable to the employee.
Bottom line… Employers should not reduce the weekly compensation from exempt employees for partial days caused by bad weather.
For a relevant DOL opinion letter, check out the link below.