Every employee in Ontario who commutes into a workplace will sometimes have issues relating to bad weather particularly in Ontario’s winter months. For example, people in Ontario at times must deal with blizzards or heavy snow, blowing snow or whiteout conditions, snow squalls, extremely cold temperatures and freezing rain. Also, to be clear, inclement weather may also occur in milder seasons such as spring or summer where flooding or heavy rain may be at issue. The bottom line is that inclement weather conditions can occasionally make it difficult to commute to work and sporadically make it even hazardous to do so. This blog seeks to clarify some questions employers and employees alike may have relating to the legal implications of bad weather and the workplace.
1. Can an employee still be paid by their employer if they do not attend work due to bad weather?
Yes, it is possible that the employee could still be paid by their employer despite not attending the workplace due to bad weather. For example, if the weather is severe enough that commuting into or attending work could be hazardous, the employer may choose to pay wages to their employees despite the employee remaining at home and not working due to the bad weather. This likelihood increases when the employer has shut down or closed the workplace altogether because of the severity of the weather conditions or the employment contract sets out that employees will be paid during periods of inclement weather or the parties’ past practices determine that employees are to be paid despite not attending work because of bad weather conditions.
Employers may also have a workplace policy that further clarifies or sets out conditions when employees would be paid despite not attending work due to bad weather conditions. Employees who work remotely should be paid if they perform their work in the ordinary course of business despite bad weather as there is no concern relating to a commute into a workplace in cases of remote work. Finally, employees who are regularly scheduled to work more than 3 hours a day and, despite being available to work longer, are directed to go home early by their employer due to bad weather still must be paid wages for three hours.
The answer to the question of whether an employee is owed wages given their workplace non-attendance due to bad weather is very fact driven. It is important that an employee or employer contact an employment lawyer to go over their specific situation to get a clearer understanding of the legal implications of these issues related to wages and bad weather on their own specific case.
2. Can an employee be fired “for cause” for failing to attend work due to bad weather?
If an employee fails to attend work due to concerns relating to bad weather and their concerns are valid and reasonable, the employer will have a hard time justifying any sort of termination with cause or even discipline against an employee and these actions if taken by the employer could increase the employer’s risk of litigation. For example, any actions by an employer that leads to termination or discipline of the employee because the employee did not attend work due to bad weather can result in a wrongful dismissal claim by the employee against the employer. Further, the employee may be also claim that their termination or discipline was an act of reprisal or bad faith termination which may lead to claims for additional damages.
For more information about bad faith in employment law or reprisals, please review our blogs:
3. Can an employer get in trouble for demanding an employee to come to work during bad weather?
Possibly. Employment law does not expect employees to risk their personal safety to attend work during inclement weather. However, the answer to this question would be highly dependent of the facts of the matter. For example, the type of job that the employee has and the nature of the bad weather would have a significant impact on whether an employer could be accused of wrongdoing for demanding an employee to attend work when there is bad weather to contend with.
The employer should refrain from demanding that the employee attend work in a situation where an employee would be reasonable in not attending the workplace due to safety concerns. Further to #2 above, the employer should refrain from withholding wages or pay or demand that the employee “make up” the time they did not attend work as a penalty or punishment for failing to attend work as this type of behaviour may increase the litigation risk for the employer.
Another red flag for an employer is demanding that the employee attend work during bad weather even though the employee has familial caregiving demands related to inclement weather. A common example is that the employee has minor children and schools are closed, school buses are not running, or daycare may be shut down due to bad weather. Again, due to concerns surrounding human rights and the requirements of the employer to accommodate family status up to the point of undue hardship, the employer may again be increasing their risk of litigation if they fail to accommodate the employee.
4. Should an employer prepare an inclement weather policy for their workplace?
It would be helpful to both employers and employees if the workplace had in place a policy that sets out what to expect when there is bad weather. Then there would be less unknowns for both parties and each can better predict what to expect when there is bad weather in terms of attendance and pay.
The policy could include things like a reasonable definition of what bad or inclement weather means, when to notify the employer if the employee will not be attending work due to bad weather, what will happen if there are school or road or transit closures due to bad weather, when will the employer close or shut down the workplace due to inclement weather, etc.
How Zeilikman Law Can Help
Any employer or employee who has questions about employment law and the legal implications that bad weather may cause in the workplace should contact an employment lawyer. An employment lawyer can review the situation and discuss what the next steps should be (if any), they can review the employer’s policies relating to bad weather, what the employer should do if the employee cannot attend work and any workplace safety or accommodation concerns that may exist because of inclement weather.
Zeilikman Law can be contacted online here or via telephone at 905-417-2227 to schedule a confidential consultation.
