Winter snow can create some unique and frustrating employment problems for employers. Understanding what is a snow emergency and what an employer can expect of its employees is the first step in dealing with foul weather.
What is a snow emergency?
A sheriff may, pursuant to Ohio law, declare a snow emergency and temporarily close county and township roads within the sheriff’s jurisdiction when such action is reasonably necessary for the preservation of the public safety.
What do the different levels of snow emergencies designate?
The sheriff has the discretion to vary the level of warning issued to the public. To distinguish mere warnings from actual roadway closure, the county sheriffs in Ohio have established different levels of snow emergencies. For instance, the guidelines established for Franklin County1 are as follows:
Roadways are hazardous with blowing and drifting snow. Roads are also icy. Drive very cautiously.
Roadways are hazardous with blowing and drifting snow. Only those who believe it is necessary to drive should be out on the roadways. Contact your employer to see if you should report to work.
All roadways are closed to non-emergency personnel. No one should be out during these conditions unless it is absolutely necessary to travel. All employees should contact their employer to see if they should report to work. Those traveling on the roadways may subject themselves to being charged with a misdemeanor.
What can an employer do during a snow emergency?
Level 1 and Level 2 Snow Emergencies
Where an employee elects to stay home despite a requirement to report to work and is disciplined, that discipline should not expose the employer to any serious liability. Where the discipline results in terminations, the employer may face a wrongful discharge action, but attendance violations are generally considered to be proper basis for discharge, and the employee was not asked to report to work under circumstances that would expose the employee to criminal prosecution.
Level 3 Snow Emergencies
Once a sheriff has declared a Level 3 Snow Emergency in Franklin County, the roads are closed and anyone (non-emergency) traveling on them is subject to being charged with a fourth degree misdemeanor. Employers should review applicable county policy as it may provide discretion to an employer to declare its operations as “emergency” based upon the employer’s circumstances. Additionally, each county sheriff has discretion in interpreting and applying county policy.
Many businesses send all employees home when a Level 3 snow emergency has been declared. However, some businesses may want or need to continue some level of operation during such conditions even though their employees are not generally considered to be “emergency personnel.”
Any employer that requires its employees to report to work could face a workers’ compensation claim if the employee is injured in the commute, since exposing the employee to this type of danger would be a special hazard caused solely by their employment. Additionally, any discipline for an employee’s decision not to expose oneself to a criminal charge which leads to termination could expose the employer to a potential claim of wrongful discharge in violation of public policy.
The infrequency of snow emergencies creates uncertainty for employers. If possible, the safest strategy when a Level 3 snow emergency is called is to shut the business down or at least attempt to reduce the size of the workforce to only essential employees. Where that is not practical, the employer must weigh the possible liability factors, some of which are discussed briefly above, against the need to have employees report to work and come to a decision based upon its own accepted level of risk.