With the advent of winter comes a host of safety, health and legal issues that employers need to address before the weather worsens and temperatures drop to dangerous levels.
Attorneys for the law firm of Fisher Phillips recently identified four risks that need attention: how to limit risks associated with cold-weather exposure, the dangers of this year’s flu season, how to properly compensate your workers during weather-related absences, and ensuring your company holiday party doesn’t lead to a lawsuit.
Challenges to Safety
Cold weather offers its own challenges when it comes to worker safety, especially when it comes to those employees who work outside. Prolonged exposure to freezing or cold temperatures can create serious health problems like trench foot, frostbite, hypothermia and, in extreme cases, death.
Trench foot is caused by long, continuous exposure to a wet, cold environment, including actual immersion in water. Work involving small bodies of water or working in trenches with water pose particular threats. Symptoms include a tingling or itching sensation, burning, pain and swelling, sometimes forming blisters in more extreme cases.
Frostbite occurs when the skin tissue actually freezes, causing ice crystals to form between cells and draw water from them. This typically occurs at temperatures below 30 degrees F, but wind chill can cause frostbite at above-freezing temperatures. Initially, frostbite symptoms include uncomfortable sensations of coldness, and a tingling, stinging or aching feeling of the exposed area which is then followed by numbness.
Hypothermia occurs when the body’s temperature falls to a level where normal muscular and cerebral functions are impaired. While hypothermia is generally associated with freezing temperatures, it can occur in any climate where a person's body temperature falls below a normal level.
The first symptoms of hypothermia—which begin when the individual's temperature drops more than one degree—include shivering, an inability to perform complex motor functions, lethargy and mild confusion. Obviously, employees should watch for these symptoms, including uncontrolled shivering, slurred speech, clumsy movements, fatigue and confused behavior. If the employee exhibits these danger signs emergency help should be called.
There are many methods to protect your employees from the cold, including wearing protective clothing (such as gloves and hats), engineering controls and common safe work practices, the Fisher Phillips attorneys point out, and the government has free advice on many of them (see “Winter Safety Tips from OSHA” below).
Battling the Flu Season
Flu activity generally peaks in January, but it’s not uncommon for people to start displaying signs of the sickness well before the holidays. “The time to prepare for an outbreak is now,” the Fisher Phillips attorneys declare. Start by educating yourself about preventive steps you can take and planning for what to do if an outbreak hits your workplace this winter.
Some common-sense measures are very easily implemented and cost-effective, such as urging workers to thoroughly wash their hands and to use proper cough and sneeze etiquette. Employers also can supply antibacterial or waterless soap and keep on hand cleaning supplies for telephones, keyboards and desks to limit the spread of germs.
“In the coming weeks, you should introduce these measures and train your workforce to take advantage of them,” the attorneys say. “And of course, when the flu strikes, encourage those workers under the weather to stay at home in order to reduce the contagion.”
A more aggressive approach to limiting flu cases could involve changing some workplace policies to encourage workers to avoid spreading the flu. This includes temporarily altering paid-time-off or attendance policies to prevent sick employees from rushing back to work while they can still spread the disease.
If possible, you also could permit workers to telecommute or otherwise work from home during an outbreak so that their entire department doesn’t get wiped out for days or even weeks. At the first sign of symptoms, the lawyers suggest employers consider sending sick workers home or providing them with protective gear, such as face masks, to help prevent the spread of germs.
The Fisher Phillips attorneys also believe it is a good idea to consider suggesting and even encouraging employees to get flu shots. You can even have a qualified medical professional to administer shots at your workplace.
Requiring employees to get mandatory flu vaccinations is a controversial action, however. Many workers will refuse to comply, although in some industries like healthcare, mandatory flu shots are common. You must be prepared for employees objecting to the vaccination for a variety of reasons. Is the worker objecting on religious grounds? Can the vaccine aggravate another health condition or set off an allergic reaction? Does the employee simply fear needles?
According to the EEOC, an employer must interact with any employee who objects to vaccines, whether based on religious or health reasons. You need to consider possible issues under the Americans with Disabilities Act and whether reasonable accommodations are necessary, the attorneys emphasize.
“You should consider creating forms for employees to fill out if they want to request exemptions from any required inoculations based on religious, disability or medically-related reasons,” they add. “Make sure you have a team available to review and resolve any such requests in a professional and expeditious manner.”
The Wages of Bad Weather
When it comes to dealing with snow and freezing rain, company policies also should include how employees can find out if the business is open, how their schedule may be changed, what they should do if they are unable to make it to work or continue working due to the weather, and any reporting time rules for compensation that may apply under state law.
If you already have such policies in place, now is the time to review them to make sure they are up-to-date, compliant with applicable federal and state wage and hour laws, and reflect the current company philosophy on these issues, the attorneys urge.
Employees are treated differently under the Federal Fair Labor Standards Act (FLSA) depending on whether they are classified as exempt or non-exempt workers who are entitled to overtime pay. Non-exempt employees have to be paid only for the hours they work.
Absent some contractual obligation—such as an individual employment agreement or a union contract—or obligations arising under public policy (such as reporting time regulations), you are not required to pay non-exempt employees if they miss work due to inclement weather.
Also, it is permissible to make non-exempt employees use vacation time for weather-related absences, even for a half day—even if that would be a bad idea. “Of course, before implementing such a policy, you should consider how disgruntled your employees might be if they are forced to use vacation time when missing work,” the attorneys point out. “Your employees are more likely to favor a policy that allows them to choose whether to use a vacation day to cover their winter-related absence, or to simply not be paid if they are saving vacation for special plans.”
Exempt employees are different—you must pay them their full salary for any week in which they perform work. For example, if your company is shut down for three out of five days during the workweek, you must still pay the exempt employees their normal weekly salary. To do otherwise signifies that an employee is not exempt and might lead to costly litigation, the Fisher Phillips attorneys warn.
You are not required to provide paid vacation or time off for any employees, exempt or non-exempt. But if you have a vacation or paid time off policy that covers exempt employees, unless otherwise prohibited by local or state law, the attorneys say you may substitute or reduce the accrued leave for the time an employee is absent from work.
“Even if the substitution is for less than a full day, it will not affect the classification of the employee as exempt,” the attorneys explain. “Either way, if the exempt employees work for a small portion of the workweek, they must be paid for the entire week, even if your operations are closed for a portion of the week.”
What if your business stays open but an employee can’t make it to work? The Labor Department holds that if you are open for business and an exempt employee chooses not to or can’t report to work, you may count this as time off for personal reasons.