By Stephen Roppolo, Regional Managing Partner, Fisher Phillips
As if the August heat in Texas is not enough, many Texans had to endure the rare weather event of significant snowfall and, even worse, extended periods in which temperatures dipped far below freezing in February. This wasn’t just an inconvenience; hundreds of thousands of Texans were without power for days, enduring freezing temperatures inside their homes. Texas’ go-it-alone power grid was not ready for the unprecedented cold, resulting in blackouts for large swaths of the state. The economic losses, including property damage, have been estimated at $40-$50 billion. State and local authorities claim to be assessing the situation to be better prepared for similar weather events in the future. Whether they will be able to “fix it” is a question that no one can answer yet.
In the meantime, Texas employers, including health care institutions, are also trying to plan for these significant weather events in order to be ready to support their employees and operate as smoothly as possible when Mother Nature decides 100-degree days aren’t interesting enough and that new forms of traumatic weather should visit the Lone Star State.
Events like Snowmageddon can make it impossible for employees to get to work, not just because roads are impassable, but also because employees’ homes sometimes suffer property damage that requires immediate attention. For example, frozen pipes in attics and crawl spaces in many cases resulted in devastating ceiling collapses and other damage, often resulting in the kind of flooding that Texans are used to when hurricanes and tropical storms blow in from the Gulf of Mexico. This kind of property damage generally can’t wait until an employee’s day off, causing disruption at work, especially when dozens of employees are going through the same thing.
Many Texas employees have had to choose between going without pay or dipping into their paid time off (PTO) banks. Neither Texas nor federal law requires that employers provide paid leave in times of weather disasters, including hurricanes. Instead, private “PTO banks” are sometimes the only available sources for “covering” days missed due to a storm. For salaried employees who work at least part of a workweek, the full weekly salary should be paid (on the other hand, a full week of missed time can result in a deduction of the entire week’s salary or application of PTO). But for hourly employees who are only paid for the hours they work, days missed to attend to weather-related issues at home can punch a sizable hole in a paycheck.
Some employers have considered creating “conditional” paid leave days that are available only in weather emergencies. This is permissible in Texas. If an employer decides to take this approach, the policy should make clear when the days can be used, whether the days “carry over,” or if they instead disappear if there are no weather events during the year, and determine whether the weather leave will be at full or partial wages. (Which “weather events” trigger paid days should be defined in the policy as well.) Federal wage-hour law does not require that an employer pay a worker for hours not worked, and if the employer pays the employee anyway through this kind of employment benefit, it will not count as “hours worked” when determining whether the employee worked more than 40 hours (for overtime calculation purposes).
The Texas legislature has attempted to protect employees responding to a formal emergency evacuation order through the Texas Labor Code. When authorities order an emergency evacuation, employers may not take action against employees responding to that order from government officials. Texas Labor Code section 22.004 exempts emergency services personnel, but only if the employer provides adequate emergency shelter for these individuals. Health care employers often require employees to remain at the facility in such situations, and most employees readily step up to serve in these circumstances.
Hard freezes usually don’t result in evacuation orders in Texas, however, so the evacuation provisions of the Labor Code are usually not triggered. Instead, employers must decide, weighing the needs of the business and the serious issues facing their employees, whether people are required to come to work. Most employers do not apply “no-fault” attendance policies in these situations because employees already dealing with hardship should not be faced with discipline for matters outside of their control. On the other hand, when it is clear that most employees are able to return to work after a weather event, it is reasonable for employers to set limits on time missed and encourage employees to find solutions for reporting to work.
Fortunately, the federal government has made available financial assistance in times of need following weather disasters, and the Texas Snowmageddon is no exception. FEMA has announced grants for temporary housing and home repairs, low-cost loans to cover uninsured property losses, and other programs to help individuals and business owners recover from the effects of the disaster. In addition, tax filing deadlines for residents of Texas and other states impacted by the storm have been adjusted from April to June to provide additional relief for those suffering financially. Of course, if you owe taxes, you’ll still have to pay them – you just get an extra 60 days before you must do so. Texas employers should consider issuing communications to employees suffering from winter storm consequences so that no one misses out on potential assistance.
Ultimately, Texas employers are best served to do what Texans do in times of crisis – banding together and being there for one another. These times are good opportunities for employers to demonstrate that they are not only good corporate citizens but that they care about their own people and are taking steps to make things easier on them. It’s these kinds of steps that can create workplace goodwill, something that can improve employee relations in less chaotic times.