Just in time for bad winter weather, the federal Department of Labor has issued an opinion letter on how employers should pay exempt (salaried) employees for time lost due to weather emergencies. Opinion letters are put out by the DOL to explain how the wage and hour regulations of the Fair Labor Standards Act (FLSA) apply to particular circumstances. They generally provide a "safe haven" for employers to rely on.

The opinion letter, which was requested by a healthcare institution, differentiated between when an exempt employee misses a full day of work due to bad weather and when such an employee misses just part of the workday. Exempt employees are paid the same salary every pay period, no matter how many hours they work. However, the regulations provide that salary deductions may be made when an exempt employee is absent from work for one or more full days for "personal reasons" or when absent one or more full days for sickness or disability in accordance with a bona fide sick leave or disability plan.

The Department's view is that an employer who remains open for business during adverse weather emergencies may make deductions, for full-day absences only, from the pay of an otherwise exempt employee who chooses not to report for work for the day because of the adverse weather conditions, and treat any such full-day absence as being for "personal reasons" under the applicable regulations. The employee's salaried (exempt) status will not be affected if deductions are made from the salary for full-day absences.

But, the opinion letter warned that deductions from salary for less than a full-day's absence are not permitted for such reasons under the regulations. If an exempt employee is absent for a half day due to transportation problems caused by adverse weather conditions, the employee must receive a full-day's pay for the partial day worked, in order for the employee to meet the "salary basis" rule.

What if the employer closes the entire workplace for the day due to a blizzard? The exempt employees must still be paid for that day since it was the employer's decision to close. According to the DOL, an employer may not make deductions "for absences occasioned by the employer or by the operating requirements of the business." If the employer closes operations due to a weather-related emergency or other disaster for less than a full workweek, then the employer must pay an exempt employee "the full salary for any week in which the employee performs any work without regard to the number of days or hours worked" because "deductions may not be made for time when work is not available."

To summarize the guidance the DOL opinion letter provides: