The arrival of snow has raised questions about employers’ obligations when snow days occur,
lawyers Duncan Cotterill note.
A key question on the minds of both employers and employees is whether employees can be forced to use annual leave if they do not come into work after a heavy snowfall.
The answer is not straightforward and there is no “one size fits all” solution.
However, employers should be aware of their obligations and the terms of their employment agreements and be prepared to explain what the position is likely to be.
Most employment agreements will be silent on the issue of what happens if a workplace has to close because of the weather or some other situation outside the control of either the employer or employee, but generally speaking, there is an obligation on employers to pay employees who are “ready, willing and able” to work, but are unable to work because the workplace is closed or otherwise off limits.
In these situations, employees who would otherwise have attended work but for the closure – in other words those not on annual leave, sick leave or some other form of leave – will normally be entitled to be paid for the day, without having to take annual leave.
This is the case even though they did not actually work on the day because the office was closed or they were sent home.
This places a significant burden on employers to continue to pay staff when they are not able to operate and generate an income.
The situation is different where businesses are open and operating but employees either choose not to come into work, or cannot come in due to childcare requirements or concern over road conditions.
In these circumstances, it can be fair for employers to ask their staff to take annual leave if they cannot come into work but still wish to be paid for that day.
If the employee does not wish to use their annual leave entitlement, then the day away from work would be unpaid.
The situation is by no means black and white.
There may be instances where the strict application of the general principles set out above will not be fair and reasonable.
In considering whether an employee is ready, willing and able to work, an employer may need to take into account whether the employee could actually have made it into work but chose not to, or whether the employee could truly have not made it into work safely.
Each case will need to be considered on its own merits.
The key to resolving any issues that might arise is, in many cases clear, prompt and honest communication on both sides.
There are several steps that employers can take in advance of bad weather arriving, to mitigate the risk of disruption to their business.
It is important to communicate with staff any plans that have been put in place to deal with a heavy snowfall and what the employer’s expectations of staff are likely to be.
Alternative work arrangements, such as working from home, should be considered where appropriate and practicable.
Employers should also make sure that they have up to date contact information for their staff so that they can communicate with them on the day and provide updates about their work situation.
Any questions, contact the Duncan Cotterill employment team.
Duncan Cotterill is a full service law firm with a full service offering and locations in Auckland, Wellington, Nelson & Christchurch.
