Growing up in Texas, you often hear, “If you don’t like the weather, wait a few minutes. It will change.”  Inclement Weather from hurricanes along the Gulf Coast, to tornadoes across the Central Plains, to fires in the Hill Country, flooding, ice, and snow, Texas has it all.  Being prepared isn’t just about bottled water and gas-powered generators.

Businesses must have a plan in place to address inclement weather, not just when to close, but how to pay employees if closure occurs.  According to the Fair Labor Standards Act (FLSA), the U.S. government breaks requirement into two categories:  Nonexempt and Exempt requirements.


Nonexempt Employee Requirements

FSLA requires employers to pay non-exempt employees for the actual hours in which they perform work.  Some states have a “call in” or “report in” law, however Texas does not.  Employers are not required to pay nonexempt employees for business closures or early closures. Employers may generally require employees to use paid time off (PTO) for full-day or partial-day absences.  If PTO has been exhausted due to business closures, no compensation is required.

In Texas, the State mandates absences due to closures of the business based on bad weather or other similar disaster or emergency condition should not count toward any absence limit a business has.  If a business is open, and other employees are able to come to work, elective absences by employees may count toward an absence limit.  Before such an absence is counted against an employee, the employer’s policy should provide the absent employee an opportunity to document how their attendance on such days would not have been possible.

Texas Workforce Commission (TWC) goes so far as to say that failure to come to work on a day when authorities have closed area roads and are recommending against travel will likely not be considered disqualifying misconduct in an unemployment claim.  The burden to prove an employee actually could have come to work rests on the employer.

Exempt Employee Requirements

FLSA states that exempt employees almost always must be paid when they work any portion of a workweek, including situations of inclement weather or natural disaster.  If an employer closes for the entire day or sends exempt employees home early because of inclement weather, an employer is obligated to pay exempt workers for the entire day.  Only when the business is closed for more than a week due to inclement weather or natural disaster, and the exempt employee performed no work during that week, is an employer not obligated to pay.  Just as with nonexempt employees, employers may require PTO to be used as a partial- or full-day absence.

Inclement Weather Policy

Having an up-to-date inclement weather policy is important for every business.  Informing your employees of the procedure of checking-in, showing up, or leaving early during bad weather days and natural disasters is imperative to have in place before they are needed.  Having a written policy in regards to pay for exempt and nonexempt employees will ensure FLSA and Texas State requirements are met and all employees are treated fairly.

While you stack up the bottled water and prime the generator, make sure your employees have a clear understanding of what they should do, and how they will be paid during inclement weather or natural disasters.