Let’s revisit how to handle FMLA and FLSA for a snow day office closure.

Back in the day, the mere promise of Cheerios and chocolate milk was all it took to dupe my two oldest kids (then three and five) to shovel the driveway for a few hours. Come to think of it, I preferred the stick to the carrot. So I probably threatened to cancel Nickelodeon and, with that, all vestiges of Yo Gabba Gabba. Either way, the children were too young and naive to ask for minimum wage or form a union. So, they shoveled snow.

Fortunately, the littlest one — salting the walkway out of frame — lacked the manual dexterity to call the NJ Department of Labor on me.

Ah, the good ‘ol days.

Fortunately, even if my kids weasel out of shoveling snow tomorrow, I work from home. So, no big deal.

But for many of you, there are some Fair Labor Standards Act and Family Medical Leave Act implications if your business closes for inclement weather. Below, I’ll explain them.

Family and Medical Leave Act

If the employee had otherwise taken the entire week off on FMLA leave, the snow day would likely be treated like a holiday and could be charged as an FMLA day. If, however, your employee is using FMLA leave in increments of less than one week, the snow day will only count against the employee’s FMLA entitlement if the employee was scheduled and expected to work on the snow day and used FMLA leave for that day. 29 C.F.R. Section 825.200(h).

But, if a blizzard forces a business to close for an entire week because you get snow removal with the limping tortoise speed of my children, the days the employer’s business activities have stopped do not count against the worker’s FMLA leave.

Fair Labor Standards Act

Non-exempt employees only get paid for hours worked. So, if the office is closed for a snow day and the non-exempt employee does not work, the employee is not paid. Easy peasy. However, if that employee works remotely, the employee should get paid for that time. So, either (a) instruct your non-exempt employees not to work remotely or (b) remind your non-exempt employees who work remotely to track their time accurately.

Note: if a non-exempt employee ignores your instruction not to work remotely, you still have to pay that employee. However, you can discipline that employee too.

Additionally, if a non-exempt employee must remain “on-call,” you must pay that non-exempt employee (unless they can use that time for their personal benefit).

Exempt employees who perform any work during the week in which the office is closed for a snow day get paid their full weekly wages. If the exempt employee has accrued some paid time off, you may require the exempt employee to use PTO for the snow day. However, you cannot dock pay if the exempt employee has no accrued PTO. Deducting an exempt employee’s wages may convert that employee’s status to non-exempt and expose you to liability for overtime.

Now, which one of you wants to come over and shovel my driveway for coffee and donuts?