Employment Law for Every Weather Condition

After a week of nonstop showers and flooding in the Alamo City, many residents wish the sun would shine again. However, with two to four more inches expected this weekend, the end is far from here. When faced with rain and weather, businesses of any size can find operating their business at full capacity a challenge. Here are some common weather-related business questions:

Is an employer required to pay an employee who does not report to work due to bad weather?

No. Subject to federal and state law and the policies of the employer to the contrary, an employer in Texas is not required to pay a non-exempt employee if the employee does not work. An exempt employee generally must be paid on days the employee does not report to work due to bad weather. An employer policy may require employees to use paid time off for days missed for any reason, including weather-related reasons.

If an employer chooses to close down their business for the day, are employees entitled to pay?

No. Subject to federal and state law and the policies of the employer to the contrary, an employer in Texas is not required to pay a non-exempt employee if the employee does not work. An exempt employee generally must be paid on days the employee does not report to work due to bad weather. An employer policy may require employees to use paid time off for days missed for any reason, including weather-related reasons.

Is absence (or lateness) due to bad weather “cause” to dismiss an employee?

As Texas is an at-will employment state, in the absence of an employer policy or federal or state law to the contrary, an employer may dismiss an employee for any non-discriminatory reason. However, without a clear violation of company policies and satisfaction of other Texas Workforce Commission requirements, and depending on the history of the employment of that particular employee, there is a risk such a termination would result in a successful unemployment compensation application by the employee.

If an employer requires an employee to come to work during bad weather, are they exposed to any liability?

Generally, not for the employee’s commute back and forth from work. Texas law on employer liability while commuting is generally well-established, freeing the employer from liability from commute-related claims, including vehicle wrecks. There have been exceptions based on particular circumstances, for example, if the employer asks the employee to run an employer errand on the way to work. If the employer requires the employee to drive in bad weather after commuting to work, the risk of liability is higher.

Can an employer make employees work in bad weather?

Employers can force employees whose primary work is outside to work outdoors in the rain, in most cases. The only time it is prohibited for an employee to be forced to work is if the weather can cause risk of serious injury or death.

Under OSHA, employers are required to provide workplaces free of known dangers. OSHA forbids an outdoor environment that could cause serious bodily harm or death, such as a hurricane, but rain is allowed up until the point it can cause severe unsafe conditions.

These answers are general and may differ based on your business and employees’ specific circumstances, so please call our office if you have specific employment law questions.