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Important severe weather advice for employers

Posted on: September 8th, 2017 | Category: Government Regulatory & Compliance Issues, Our Blog

hurricane safety for workplacesEmployers have specific concerns for the safety of their employees during severe inclement weather. As people in Florida and other southern states prepare for Hurricane Irma, we wanted to offer a few quick links that can help employers in the area. We send our hopes and prayers to the people in the storm’s path, as well as to those in Texas who are dealing with the aftermath of Hurricane Harvey.

First and foremost, here are links that offer emergency information:

The unfortunate reality is that before, during and after severe weather situations, wage and hour laws will prevail, even in the face of natural disasters. We at myHR Partner would like to share a few inclement weather policy tips for businesses and employers. While this advice is important for businesses facing hurricanes and tropical storms in the near future, it is also relevant for a wide host of bad weather situations that any workforce may face in any part of the country, at any time of year.

What OSHA and NLRA have to say about driving to work in severe weather conditions.

HR policy severe weatherAccording to a great article, we read on the blog Chron, the situation is more complicated than you might think. For one thing, there are major compliance issues associated with 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.)

What about others? The NLRB says employers cannot retaliate against workers who refuse to work due to unsafe work conditions, provided three criteria are met. The Chron article points out that workers must:

  1. Act in good faith, honestly believing that it would be dangerous to drive under current conditions
  2. Base the refusal on a situation that must involve more than one worker
  3. 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 less clear 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 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 their job includes being 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 with access to a reliable roadside assistance service. “Putting emergency supplies in all your company vehicles says a lot about how seriously you take your employees’ safety,” she adds. “First aid kits, flares, flashlights, scrapers, 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

Here are some compliance issues to remember if you do have employees working from home.

Monster snowstorms or hurricane floods may make working from home the best option for some organizations. While this can be a great solution for many employees and employers alike, certain compliance issues with the Fair Labor Standards Act (FLSA) should be kept in mind.

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 balance of your team in making decisions.

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, who must record their time in accordance with an established system so they are properly paid. For more on these issues, check out our previous blog post on work-from-home FLSA information.

On top of the FLSA rules and regulations we mentioned above, your state may impose additional requirements or restrictions. Don’t forget any payment obligations you have under collective bargaining agreements and/or your own company policies, either.

Finally, please stay safe! Your and your employees’ health and safety are the most important thing.

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