It could be a blizzard, a hurricane or a torrential downpour. The fact of the matter is that Mother Nature can, and will, strike; and, no matter what form it comes in, severe weather imposes challenges upon businesses of all sizes. When faced with issues like slippery or flooded roads, it can be tough to balance the needs of a business with the safety of its employees.
We often get questions from employers who are staring into the face of the proverbial tornado and trying to understand their rights and obligations. This blog will address four of the most commonly asked questions.
(1) Is an employer required to pay an employee who does not report to work due to bad weather?
Generally speaking, the answer is no. The basic trade off in the employment relationship is pay for work. Unless an employer or employee have agreed otherwise, an employee who does not report for work, is generally not entitled to be paid. It does not matter how good the reason is: if the employee is not working, the employer does not have to pay them. To be sure, some employers implement alternatives by allowing employees who legitimately cannot attend at work to use a vacation day, but this is not legally required.
(2) If an employer chooses to close down their business for the day, are employees entitled to pay?
The decision to close for the day and tell employees to stay home rests solely with the employer. When faced with severe weather, an employer has to weigh the disadvantages of losing a day’s work against forcing employees into a frustrating and potentially hazardous commute.
If the employer reaches the employees ahead of time to cancel their shifts, then there is no requirement to pay the employees (provided the employer is not contractually obligated to do so). However, under Ontario’s Employment Standards Act (ESA), an employee who regularly works more than three hours a day and is required to report to work must be paid for a minimum of three hours. The reporting pay, which varies by province, is between two and four hours.
The ESA provides an exception to the minimum pay requirements if the employer is unable to provide work for the employee because of fire, lightning, power failure, storms or similar causes beyond the employer’s control that result in the stopping of work. In other words, where an employer is forced to stop work because of events beyond its control, it does not have to pay the reporting pay.
(3) Is absence (or lateness) due to bad weather “cause” to dismiss an employee?
When an employer chooses to discipline an employee, it is important to consider whether the discipline is warranted and proportionate considering all of the circumstances.
In many cases, the legitimacy of a worker’s absence or lateness may be beyond question. In situations where municipal authorities are encouraging people to stay home, an employer will have a very difficult time justifying discipline.
Of course, chronic absenteeism or lateness has been held to be an acceptable ground for dismissal with cause. To do so, an employer must normally establish that the lateness was detrimental to its operations or that it has notified the employee and provided him or her an opportunity to correct the behaviour. In addition, discipline for absenteeism or lateness must be progressive in nature.
Outside the scope of chronic absenteeism or lateness, there may just be employees who want to declare a “snow day” for themselves. If an employee is dishonestly using weather conditions as an excuse for absence (or lateness), this could be grounds for discipline up to and including termination of employment. All employees owe their employer a duty of honest and fidelity. Employers who believe that employees are taking a advantage of weather conditions are well within their rights to ask additional questions and take other reasonable steps to determine whether an employee’s absence is unjustified.
(4) If an employer requires an employee to come into work, are they exposed to any liability?
If a company decides to stay open during bad weather, it may face some risks. For example, under Ontario’s Occupational Health and Safety Act (OHSA), employers have a general obligation to take all precautions reasonable in the circumstance for the protection of the worker.
While its unclear if this duty extends so far as to require employers to close operations, this obligation may include providing employers who are exposed to the elements with:
· relief workers for long and demanding jobs;
· additional breaks; and
· appropriate protective clothing.
Employer Takeaway – The Importance of an Inclement Weather Policy
Advanced planning will help manage employee expectations and avoid last minute uncertainties. It is prudent for employers to decide how they will address the following:
· Who will decide if and when the business will close due to severe weather?
· How will the decision to close be reported to employees?
· What is your call-in procedure if an employee cannot make it to work due to severe weather?
· Will absences or lateness be excusable?
Creating a clear Inclement Weather Policy will end up saving frustration, employee dissatisfaction and possibly even lives.
About the author. Andrew Shaw is a partner with Baker & McKenzie LLP in Toronto in the Firm’s Employment & Compensation Law Group. He joined Baker McKenzie LLP as an associate in 2010 and was admitted to the partnership in 2017. Prior to attending law school, Andrew held labour relations/human resources positions at both private and public sector companies. In these roles, he managed the processing of grievances to an appropriate resolution, assisted internal clients with the interpretation of employment-related legislation, and provided counsel to senior management as required.
Andrew assists clients with all aspects of the employment relationship, both unionized and non-unionized, in the province of Ontario and throughout Canada. He advises and represents employers in matters regarding employment standards, labour arbitration, collective bargaining, human rights, wrongful dismissals and occupational health and safety. He can be emailed at firstname.lastname@example.org