By Tim Mitchell
With the temperamental Canadian weather, employers are often tasked with deciding whether or not to shut down operations during a storm. Sometimes, the employer decides it is safe enough to stay open, but employees may disagree.
How should an employer handle an employee who refuses — for safety reasons — to commute to work whenever the weather is bad, even if the office is open?
The short answer is in the absence of a contractual or statutory obligation, an employer is not required to pay an employee who chooses to take a snow day when the office is open and work is available to be performed. The decision to grant or withhold pay in such a situation is a decision within the employer’s discretion.
Many collective agreements contain provisions expressly addressing non-attendance due to inclement weather. The provisions vary widely. Some simply deny pay when an employee does not attend. Others place conditions on pay entitlement, such as proof of the “impossibility” of attending. Yet others may require or permit absent employees to use banked vacation or overtime hours as a substitute for the hours not worked or to treat the time off as unpaid leave. Often, employees may be allowed a limited number of paid personal days that can be used for snow days. Discretion may also be reserved to deal with specific situations on their particular facts if the general rule is to deny pay.
Non-attendance based on an employee’s legitimate safety concerns is unlikely to be considered cause for dismissal in either common law or unionized employment, without more. The fact that the workplace remains open is not necessarily determinative of the legitimacy of the employee’s decision, as each employee’s circumstances will be different. Some may be able to walk to work or have access to public transit. Others may live at a considerable distance or in a remote area where travel is more difficult or dangerous.
Discipline may certainly be considered if there is reason to believe that safety concerns are not the real reason for the absence. A recent example of such a disciplinary response was upheld at arbitration in National Steel Car and USW, Local 7135 (Porcic), Re. In that case, an employee’s snow day was treated as a culpable absence in breach of a last chance agreement where the employer was able to show that the absence was not warranted by the weather conditions, the employee’s proximity to the workplace and the other options available to him.
It is good practice to have a written policy that expressly contemplates the possibility of adverse weather conditions in situations that do and do not result in closure of the workplace. This will ensure employees are aware in advance of the employer’s expectations vis-à-vis attendance and pay in such circumstances and may determine their course of action in the face of that knowledge.
Tim Mitchell practices management-side labour and employment law at Norton Rose Fulbright’s Calgary office. He can be reached at (403) 267-8225 or firstname.lastname@example.org.