Several issues to consider in calling a snow day: Experts

Maybe the postal service can get through rain, sleet or snow, but there are a lot of employees who struggle to get to work — or aren’t so keen to get to work — on winter storm days.

The same could be true when forest fires or flooding emergencies strike, as seen of late in Alberta.

So, how should employers respond when the weather is dire? There are a few issues to consider, according to the experts.

Safety considerations

If there is a provincial or municipal state of emergency and people are not emergency personnel or essential services, employers can “get into trouble” if they require workers to come into work, said Erin Ludwig, a partner at McLennan Ross in Calgary.

“With a severe weather event such as the flooding that Calgary had in 2013, that's a situation (that’s) completely unprecedented — exceptional — and if employers were forcing employees to come into work, depending on the location and what roads were closed, they could trigger some actual workplace health and safety issues.”

However, employees may be inclined to cite directives from Environment Canada suggesting people avoid or limit “non-essential travel” — and that’s not the law, that’s a recommendation, said Andrew Shaw, partner at Baker & McKenzie in Toronto.

Really, it’s more about occupational health and safety and taking reasonable precautions, he said, “and it really needs to be evaluated on a case-by-case basis.”

If it's possible for employees to work productively from home, they should do that, said Shaw. But if people do work outdoors, “just make sure that you have certain safety measures in place in terms of making sure that people are wearing appropriate protective clothing, making sure they're de-icing areas that need to be de-iced obviously (and) being potentially flexible with arrival times.”

Making the decision to close a workplace includes an assessment location, such as whether it’s a downtown office building or a forestry company, he said.

“If it's not dangerous to get there, then I don't I don't think it's necessary to cancel the day. But I think it would be reasonable, if it looks like it's going to take employees a significant amount of time to get home… if possible, to shorten the day.”

Legislative issues

Under Alberta’s new employment standards, employees can take up to five days of unpaid leave after they’ve been with the same employer for 90 days, said Ludwig.

For example, if schools close unexpectedly, a parent may have to stay home with the kids and “the employer would be required to grant an unpaid leave day for family responsibilities,” she said.

“The employee should give the employer as much notice as reasonable and practical under the circumstances.”

Ontario employees could also take advantage of unpaid time off, such as family responsibility leave, said Shaw.

“Frankly, I think that would be the least an employer can do… unless it's clear that the person is looking for a snow day and they already have extreme issues with absenteeism and lateness.”

While accommodation around family status has grown in status, it wouldn’t apply here, he said.

“Family status is more some sort of long-term or permanent issue the family has, it’s not a... short-term problem. That being said, I could totally see employees raising it to try and get it.”

However, it wouldn’t really be reasonable for an employer to tell a single parent she must come into work and leave her child alone, said Shaw.

“The question is: What's the balance?”

It’s important to give people options, such as using a vacation day or lieu day, so they don't actually lose wages, he said.

“It would be reasonable to say, ‘Well, it's not our fault that we haven't been able to do anything, say, but it's also not your fault. So, we're going to try to come to some kind of happy medium.’”

Payment concerns

Generally, it’s best practice that if an employer decides to close for the day because of bad weather, it’s “almost like a perk for employees. And they would pay the employees for that day,” said Shaw.

That’s what’s going to happen in 99 per cent of cases where people come to work but then the employer decides to close early, he said.

“The best practice is definitely to pay,” said Shaw. “The only time I would say not to pay is if the employer has been able to cancel the day before it began. In other words, people didn't have to come in at all, or it's some sort of industry (such as) a large manufacturing facility or construction or something where you need a certain amount of people and they couldn't do anything the entire day.”

Generally, in Ontario there's no requirement to pay employees when they aren't working but some companies might still pay workers if they close the office, or close the office early, said Andrew Monkhouse, senior lawyer and founder of Monkhouse Law in Toronto.

But the vast majority of people in Ontario work on annual salaries, so “the expectation is that they will get the work done some other way, even though their employer is allowed to dock them for time not worked — similar for a doctor's appointment or something else. The tendency is to not do that. But it depends on the employer.”

While Ontario employees must be paid for three hours of work if their shift is unexpectedly cancelled or shortened, that doesn’t always apply, said Shaw.

“If somebody comes into work and they’re told that that there is no work because of a storm, then that's an exception, they wouldn't have to be paid the three hours.”

The Alberta Employment Standards Code runs on the premise that people have to do the work in order to get paid, said Ludwig, so if employees don't come in — for whatever reason — there's no obligation on the employer to pay out.

However, if the employer closes due to weather, and hourly employees are already scheduled to work there, the employer may be on the hook to pay for three hours, she said.

“If the employer cancels their regular scheduled shift on very short notice, the employee is still entitled to get that pay.”

And for those workers who are not covered under collective agreements and have to be at work, such as fast-food workers or hotel housekeeping, they don't get paid unless they work, said Ludwig.

However, “the employer may out of benevolence say, ‘You know, if you can't come in today, that's OK.’ But there's no expectation for a non-unionized employee to get paid due to a snow day,” she said.

Planning ahead

Advance preparation will depend on the size of organization, said Monkhouse. Many employers cover the issue in a handbook while others deal with snow days on a case-by-case basis or via an informal policy.

Larger employers with critical, sensitive employment — such as oil wells — may use a hotline to make sure they have a certain minimum number of staff to ensure certain equipment is running, he said.

“There's no legal requirement, one way or the other; it’s up to management’s discretion. But generally… it should be equal to everybody — you wouldn't want to create some sort of arbitrary cutoff where employees who live further than 10 kilometres away don't have to come in, but the people who live around the corner have to come in. Because a) it's going to create a resentment and b) the person who's coming in from around the corner, if they fall, you know, you could certainly see questions raised about why they had to come in. It's just not going to be a good situation.”

Before making the call to close for a snow day, employers should figure out who's going to make that final decision, said Ludwig.

“There should be someone with managerial responsibility that provides the directive as to whether or not work is going to continue or not and, really, it should be an operational leader due to obligations under workplace health and safety to maintain a safe environment.”

And it’s important to get the word out to employees effectively. Again, that will depend on the type of workplace involved, but could include a hotline or email, said Shaw.

After-hours employees can't necessarily be expected to check their email, so there needs to be a protocol where a supervisor or manager has the obligation to contact people at home, he said.

However, text messages are not recommended.

“The problem with it is the employer wants to be able to say, in the worst-case scenario… they did, in fact, take every reasonable precaution,” said Shaw. “The problem with text is that you don't necessarily have a trail… people can delete an email but, actually, you can easily find them.”