October 2017 - Extreme Weather Events

Whether blizzards in the East, tornadoes in the Midwest or hurricanes in the South, weather events can oftentimes be extreme and unpredictable. However, an employer can still control how it prepares its employees and the workplace for such an event. Knowing how to respond to extreme inclement weather will help protect both the employer and its employees.

Employers are required by the General Duty Clause of the Occupational Safety and Health Act (OSH Act) to provide a safe and healthy workplace to their employees. It is therefore important for an employer to take precautionary measures that can be adapted for various weather events.   

The following are key steps an employer can take to handle various workplace issues that may arise due to an extreme weather event

1.    Create an Emergency Action Plan (EAP)

An employer should consider creating an emergency action plan (EAP) best suited to address extreme weather events. The first step in creating an EAP is to identify the types of weather events that are likely to affect the workplace. For example, an employer in Kansas might not need a plan to respond to a hurricane, while a Florida employer might. While it is prudent to be prepared for certain situations, an EAP should also be flexible enough to deal with the unexpected.   

Once a risk analysis has been completed, an employer should assemble a team consisting of various members of management, HR, security and in-house legal counsel to create and carry out the purpose of the EAP. An employer may also want to utilize external resources, such as local law enforcement and emergency responders, outside counsel and the facility owner or property manager.   

In addition to the above, an effective EAP should include the following components:

2.    Inform Employees of Policies and Procedures

It is critical that all employees are made aware of how an extreme weather event may affect them, their workday and office. To ensure that employees are kept up to date with the latest information, an employer should implement an emergency communications policy that advises employees on the communication channels to use, e.g., remote access to the employer's network and a local telephone number to receive updated status on the emergency and its effect on their workplace. This will allow employees to learn news regarding office closures and other related developments.   

If an employer chooses not to have an EAP, the employer should, at least, have a policy that sets out the emergency procedures employees should follow in the event of an extreme weather event. An employer should also consider having an employee handbook statement that addresses inclement weather and office closings.   

3.    Prepare Employees Affected by Extreme Weather

An employer should also remember that some employees may be more affected by an extreme weather event than others due to the nature of their job duties and, therefore, should take steps to ensure these employees' health and safety.   

For example, if some employees are required to drive employer-provided vehicles during a winter storm, the employer should make sure the vehicle is winterized, the employee knows how to drive in icy terrains, and a first aid and emergency kit is in the vehicle.   

Similarly, an employer should educate employees who work outside in the cold temperatures about how to recognize signs of frostbite or hyperthermia. An employer should also consider providing these employees personal protective equipment to protect them from the elements.   

On a related note, an employer should take steps to protect employees, such as construction and agricultural workers, who spend most of the workday outside in the heat. The Occupational Safety and Health Administration (OSHA) provides employers with various resources on how to protect and train employees working in extremely hot temperatures.   

4.    Consider Wage and Hour Issues

When the workplace is closed due to inclement weather, e.g., snow or hurricane, an employer needs to determine whether employees must be paid during the closure. However, there are several factors an employer must consider before making such a determination, including:

However, notwithstanding the above, an employer should also take note of any employment contracts or collective bargaining agreements that would require that employer to pay its employees even in situations when the FLSA does not require it. Also, an employer should consider paying its employees during the workplace closure to maintain or boost morale and retention.   

5.    Understand How to Verify Employment When an Employee's Documents Are Lost or Damaged

When a new hire's verification documents are lost or destroyed due to an extreme weather event, such as a hurricane, the Form I-9 rules allows an employee to provide a receipt for an application for a replacement document. The employee then has up to 90 days from the date of hire to submit the replacement document. The receipt must be for a replacement document that evidences existing employment authorization. Therefore, a receipt of an application to apply for an initial or renewal employment authorization is not acceptable. Once provided, the employer inserts the word "receipt" followed by the title of the receipt in Section 2 of the Form I-9 under the applicable list (List A, List B or List C). An employer should also write the last day the receipt is valid in the expiration field. A receipt is not an acceptable document if employment is going to last less than three days.   

6.    Manage the Aftermath

In many cases, an extreme weather event may disrupt an employer's workplace and business function. An employer should research and implement an emergency preparedness plan to keep the business running and its employees working.   

In the event of a severe and catastrophic weather event, an employer may need to:

An employer also should take the time to review the effectiveness of its emergency response procedures and make improvements as needed.   

Melissa Gonzalez Boyce, XpertHR Legal Editor
August 17, 2017

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