Driving to work safely in severe weather: When is an employer liable?
Whoa. Our beloved Lehigh Valley had a record snow accumulation on Saturday of 31 inches! The weather on the eastern seaboard this past weekend has brought a very important human resources question into the spotlight for many organizations: What are employer and employee rights when inclement weather strikes and the latter has concerns regarding personal safety? And is the right to refuse driving in these kinds of conditions the same across different industries and job titles?
What do OSHA and NLRA have to say?
According to a great article we read on the blog Chron, The situation is more complicated than you might think at first. For one thing, there are major compliance issues in regards to Occupational Safety and Health Administration (OSHA) and National Labor Relations Act (NLRA) regulations. OSHA regulations say that if a motor carrier is afraid of serious injury based upon conditions that he or she considers to be hazardous, that employee cannot be fired, disciplined or discriminated against for refusing to drive. (Every state has its own definition of what it considers to be a motor carrier, so be sure to check yours.) And what about non-motor carriers? The NLRB says employers cannot retaliate against workers who refuse to work due to unsafe work conditions, provided three criteria must be met. The Chron article points out that workers must:
- Act in good faith, honestly believing that it would be dangerous to drive under current conditions
- Base the refusal on a situation that must involve more than one worker
- Show that the refusal to drive cannot be part of a work stoppage designed to get around a “no strike” clause in a union contract
The Department of Labor seems fickle on this.
Also according to the Chron post, the U.S. Department of Labor (DOL) has ruled in the past in ways that favor both sides of the driving during inclement weather issue. The DOL has agreed with an employer’s right to fire an employee for refusing to drive in some cases, but also has said that drivers who legitimately had weather-related safety concerns have a right to refuse. When the DOL decision favors the employee, mind you, he or she is entitled to his or her job back, legal fees and back pay.
What can employers do?
There are steps companies can take to reduce the risks during inclement weather. “For starters, you have a clear, established policy concerning weather-related driving concerns in your employee handbook,” says Tina Hamilton, PHR, president of myHR Partner. “Let your team know what your expectations are during inclement weather if part of their job is being out on the road, including what types of driving-related tasks can be postponed to another, safer time.”
Hamilton also says that employers can do things such as make sure their company owned vehicles are given regular safety checks and provide employees on the road access to a reliable roadside assistance service. “Putting emergency supplies in all your company vehicles also says a lot about how seriously you take your employees’ safety,” she adds. “First aid kits, flares, flashlights, scrappers, shovels, these are all things your employees will appreciate you giving them, even if they never need to use them.”
When it comes to employees commuting to work, you may want to consider how your attitude and policies for inclement weather impact your employee relations, too. “When you need them to work, requiring that employees drive in conditions that they feel are unsafe can contribute to poor morale,” says Hamilton. “Your employees well being should clearly be a concern.” Alternative options to consider include:
- working from home
- working adjusted hours for the week
- using PTO time to stay home and enjoy the snow with their kids or for a day off
Keep in mind that if you close and do not allow employees to work, exempt employees that were otherwise willing to work must be compensated for the day. Hourly employees, on the other hand, do not need to be compensated by law. Consider the impact on the exempt vs. non exempt ratio of your team in making decisions.
Here’s something to remember if you have employees working from home.
As we reported in the aftermath of Hurricane Sandy, you are required by law to pay employees if they work from home during inclement weather. This includes non-exempt employees, and they must record their time in accordance with an established system so that they are properly paid. For more on these issues, check out our previous blog post on work-from-Home FLSA information.
Want some help before the next emergency strikes your business?
myHR Partner provides human resources outsourcing services to help you navigate those tricky compliance waters and build better employee relations at the same time. We know the importance of HR documentation and can create a customized employee handbook for you, which can be a valuable tool that clearly represents your unique organization. We can help you craft policies and guidelines that comprehensibly outline your expectations and obligations as an employer, while also also making certain your employees’ commitments and rights are spelled out in clear terms.