For much of Canada, this winter has been severe and seemingly never-ending. Toronto has just come through a February that didn’t see the temperature climb above the freezing mark even once; and as I type this, the 24-hour forecast calls for 5-10 centimetres of snow, ice pellets and freezing rain – and, obviously, very treacherous commuting conditions.
With that forecast comes my own prediction, as an employment lawyer: many employers will have a number of workers who cite inclement weather as a reason for not reporting to work tomorrow. In other words – and to use the schoolyard vernacular – there will be employees who self-declare a “snow day”.
In some circumstances, the legitimacy of a worker’s non-attendance may be virtually beyond question. For example, in the midst of a pummelling storm that is dumping heaps of snow and creating widespread white-out conditions, commuting becomes almost impossible. In such extreme conditions, the police and municipal authorities frequently encourage people to stay at home; and employers sometimes suspend operations and declare a company-wide snow day. In those situations, employee absences will obviously be non-culpable and will not count as attendance violations.
Outside of such clear-cut cases, however, it is not unreasonable for employers to have questions about the veracity of employees’ claims that bad weather is keeping them from reporting to work. In dealing with such assertions – and in determining whether the employee’s absence should be treated as culpable or non-culpable – HR should consider the following:
- First and foremost (and quite apart from whether or not the employee’s absence is legitimate), the employer is under no obligation to pay an employee for a “snow day” on which s/he does not report for work – unless a contract, policy or established practice dictates otherwise. Whether the employee is permitted to apply a vacation day so as to make for a paid “snow day” will be the employer’s decision.
- Has the employee been duly diligent in following the applicable absence-reporting protocol to notify the company that s/he won’t be in? Except in the unlikely event that the employee’s access to telephone communication has been completely cut off, there should be no excuse for not properly reporting a “snow day” absence.
- Is the employee’s declaration of a “snow day” objectively reasonable? In that regard, the Company should consider not only the baseline question of whether or not weather conditions might reasonably account for the employee’s absence (e.g. whereas 8” of snow might present a reasonable basis, 1” almost certainly will not), but also the individual’s specific circumstances—for example:
- Employee lives in a rural area where roads are not quickly cleared vs. employee commutes to work via subway (and subway service is minimally affected by the weather conditions that day);
- Employee reports being “snowed in” vs. co-worker from the same neighbourhood attends at work without complaint and verifies that streets are passable;
- Employee has a physical disability that presents an added obstacle and/or risk to travelling through icy conditions vs. employee has no such disability;
- Employee has a strong attendance record vs. employee has a history of culpable absences;
- Employee has consistently demonstrated a high level of responsibility and credibility vs. employee has a history of work avoidance and weak credibility; and
- Employee makes a genuine effort to work remotely and ensure that his/her responsibilities for the day are covered vs. employee makes no such effort, despite having the ability to do so.
If – based on those considerations or otherwise – the employer has reason to believe that a worker’s assertion of a “snow day” is not bona fide, it is the employer’s prerogative to ask additional questions, seek further explanation and take other reasonable steps to determine whether the employee’s absence was culpable vs. non-culpable. And if that further due diligence leads to a determination that the employee was using the weather as an excuse to “play hooky”, then it is fair and appropriate for the employer to respond to the absence with disciplinary consequences.
Ultimately, employees and employers alike should take a reasonable perspective on – and exercise reasonable discretion in dealing with – inclement weather conditions.
In that regard, rather than harkening back to the childhood experience of a snow day equating to a day off from school, employees would do well to consider the traditional “creed” of the U.S. Postal Service—i.e. “Neither snow nor rain nor heat nor gloom of night stays these couriers from the swift completion of their appointed rounds.” Although that isn’t to say that workers should be expected to make extraordinary and heroic efforts to overcome the elements, they should be prepared to take all reasonable steps to ensure their attendance at work . . . because Old Man Winter isn’t finished with us yet.