The recent 2021 winter storm in Texas shut down a large portion of the state for the week. Lack of electricity forced the closing of many businesses. Those businesses that were able to stay open had numerous absences from employees who could not travel to work because of the snow and ice or could not work remotely because of the lack of electricity at home. A common question from employers is whether or not they are required to pay employees for work due to inclement weather. The answer depends on a couple factors. First, is the employee a non-exempt (often, hourly) employee or an exempt (usually, salaried) employee? Second, is the employee unable to work due to the business closing or the employee’s inability to get to work?
An employer does not have to pay a non-exempt employee for any time that an employee does not work. This is true whether the employer closes its business for any period of time or the hourly employee is unable to get to work. If an employer wants to pay a non-exempt employee for work missed, the employer can have the hourly employee use PTO, provide the employee a pay advance, or simply give gratuitous paid leave. None of this pay would be included in overtime pay calculations.
Exempt employees are a little more tricky. The second question asked above becomes relevant (i.e., the question about why the employee did not work). An exempt employee is due his or her entire salary for any week in which the employee is willing and able to work and does some work. So, if a business is closed for less than a week, but the exempt employee is willing and able to work and does work some amount of time during the week (even an hour) the employee is due his or her entire salary for the week. The employer can require the employee to use PTO for the days the business was closed but if the employee is out of PTO, the employee must be paid his or her entire salary for the week. If the business is open and the exempt employee does not feel comfortable driving to work, the employer can deduct salary for full days missed. Again, the employee can use PTO if they miss an entire day, but if the employee does not have PTO available the employer can deduct for full day absences. The one scenario in which an employer can deduct a full week’s salary from an exempt employee when the business is closed is when the business is closed for the entire week and the exempt employee provides no work. In that instance, the exempt employee would receive no pay for the week. Employers need to ensure the exempt employee does not work, though, including answering emails at home or taking phone calls. Any amount of work, even if not authorized, entitles the employee the entire week’s salary. Deducting from an exempt employee’s salary comes with risk as employers can lose the exemption if the deduction is improper.