With the advent of winter comes a host of safety, health and legal issues that employers need to address before the weather worsens and temperatures drop to dangerous levels.
Attorneys for the law firm of Fisher Phillips recently identified four risks that need attention: how to limit risks associated with cold-weather exposure, the dangers of this year’s flu season, how to properly compensate your workers during weather-related absences, and ensuring your company holiday party doesn’t lead to a lawsuit.
Challenges to Safety
Cold weather offers its own challenges when it comes to worker safety, especially when it comes to those employees who work outside. Prolonged exposure to freezing or cold temperatures can create serious health problems like trench foot, frostbite, hypothermia and, in extreme cases, death.
Trench foot is caused by long, continuous exposure to a wet, cold environment, including actual immersion in water. Work involving small bodies of water or working in trenches with water pose particular threats. Symptoms include a tingling or itching sensation, burning, pain and swelling, sometimes forming blisters in more extreme cases.
Frostbite occurs when the skin tissue actually freezes, causing ice crystals to form between cells and draw water from them. This typically occurs at temperatures below 30 degrees F, but wind chill can cause frostbite at above-freezing temperatures. Initially, frostbite symptoms include uncomfortable sensations of coldness, and a tingling, stinging or aching feeling of the exposed area which is then followed by numbness.
Hypothermia occurs when the body’s temperature falls to a level where normal muscular and cerebral functions are impaired. While hypothermia is generally associated with freezing temperatures, it can occur in any climate where a person's body temperature falls below a normal level.
The first symptoms of hypothermia—which begin when the individual's temperature drops more than one degree—include shivering, an inability to perform complex motor functions, lethargy and mild confusion. Obviously, employees should watch for these symptoms, including uncontrolled shivering, slurred speech, clumsy movements, fatigue and confused behavior. If the employee exhibits these danger signs emergency help should be called.
There are many methods to protect your employees from the cold, including wearing protective clothing (such as gloves and hats), engineering controls and common safe work practices, the Fisher Phillips attorneys point out, and the government has free advice on many of them (see “Winter Safety Tips from OSHA” below).
Battling the Flu Season
Flu activity generally peaks in January, but it’s not uncommon for people to start displaying signs of the sickness well before the holidays. “The time to prepare for an outbreak is now,” the Fisher Phillips attorneys declare. Start by educating yourself about preventive steps you can take and planning for what to do if an outbreak hits your workplace this winter.
Some common-sense measures are very easily implemented and cost-effective, such as urging workers to thoroughly wash their hands and to use proper cough and sneeze etiquette. Employers also can supply antibacterial or waterless soap and keep on hand cleaning supplies for telephones, keyboards and desks to limit the spread of germs.
“In the coming weeks, you should introduce these measures and train your workforce to take advantage of them,” the attorneys say. “And of course, when the flu strikes, encourage those workers under the weather to stay at home in order to reduce the contagion.”
A more aggressive approach to limiting flu cases could involve changing some workplace policies to encourage workers to avoid spreading the flu. This includes temporarily altering paid-time-off or attendance policies to prevent sick employees from rushing back to work while they can still spread the disease.
If possible, you also could permit workers to telecommute or otherwise work from home during an outbreak so that their entire department doesn’t get wiped out for days or even weeks. At the first sign of symptoms, the lawyers suggest employers consider sending sick workers home or providing them with protective gear, such as face masks, to help prevent the spread of germs.
The Fisher Phillips attorneys also believe it is a good idea to consider suggesting and even encouraging employees to get flu shots. You can even have a qualified medical professional to administer shots at your workplace.
Requiring employees to get mandatory flu vaccinations is a controversial action, however. Many workers will refuse to comply, although in some industries like healthcare, mandatory flu shots are common. You must be prepared for employees objecting to the vaccination for a variety of reasons. Is the worker objecting on religious grounds? Can the vaccine aggravate another health condition or set off an allergic reaction? Does the employee simply fear needles?
According to the EEOC, an employer must interact with any employee who objects to vaccines, whether based on religious or health reasons. You need to consider possible issues under the Americans with Disabilities Act and whether reasonable accommodations are necessary, the attorneys emphasize.
“You should consider creating forms for employees to fill out if they want to request exemptions from any required inoculations based on religious, disability or medically-related reasons,” they add. “Make sure you have a team available to review and resolve any such requests in a professional and expeditious manner.”
The Wages of Bad Weather
When it comes to dealing with snow and freezing rain, company policies also should include how employees can find out if the business is open, how their schedule may be changed, what they should do if they are unable to make it to work or continue working due to the weather, and any reporting time rules for compensation that may apply under state law.
If you already have such policies in place, now is the time to review them to make sure they are up-to-date, compliant with applicable federal and state wage and hour laws, and reflect the current company philosophy on these issues, the attorneys urge.
Employees are treated differently under the Federal Fair Labor Standards Act (FLSA) depending on whether they are classified as exempt or non-exempt workers who are entitled to overtime pay. Non-exempt employees have to be paid only for the hours they work.
Absent some contractual obligation—such as an individual employment agreement or a union contract—or obligations arising under public policy (such as reporting time regulations), you are not required to pay non-exempt employees if they miss work due to inclement weather.
Also, it is permissible to make non-exempt employees use vacation time for weather-related absences, even for a half day—even if that would be a bad idea. “Of course, before implementing such a policy, you should consider how disgruntled your employees might be if they are forced to use vacation time when missing work,” the attorneys point out. “Your employees are more likely to favor a policy that allows them to choose whether to use a vacation day to cover their winter-related absence, or to simply not be paid if they are saving vacation for special plans.”
Exempt employees are different—you must pay them their full salary for any week in which they perform work. For example, if your company is shut down for three out of five days during the workweek, you must still pay the exempt employees their normal weekly salary. To do otherwise signifies that an employee is not exempt and might lead to costly litigation, the Fisher Phillips attorneys warn.
You are not required to provide paid vacation or time off for any employees, exempt or non-exempt. But if you have a vacation or paid time off policy that covers exempt employees, unless otherwise prohibited by local or state law, the attorneys say you may substitute or reduce the accrued leave for the time an employee is absent from work.
“Even if the substitution is for less than a full day, it will not affect the classification of the employee as exempt,” the attorneys explain. “Either way, if the exempt employees work for a small portion of the workweek, they must be paid for the entire week, even if your operations are closed for a portion of the week.”
What if your business stays open but an employee can’t make it to work? The Labor Department holds that if you are open for business and an exempt employee chooses not to or can’t report to work, you may count this as time off for personal reasons.
For an exempt employee taking personal leave, you may deduct from in full-day increments only, not for half-days missed, the attorneys say. A salaried exempt employee who misses a full day of work due to personal reasons generally may receive a deduction of the day’s salary, although some restrictions may apply, such as when an employee works. If the employee shows up for work at noon and works until 6 pm, you can’t deduct from their pay (although you may be able to reduce their vacation leave bank).
Coping with Holiday Parties
There is always a human resources risk involved in holding any company-sponsored holiday party, and choosing to serve alcohol at these events only compounds the problem, the attorneys remind employers. According to one study, 36% of employers reported behavioral problems at their most recent company party. These problems involved everything from excessive drinking and off-color jokes to sexual advances and even fist fights.
Since most employers still want to hold holiday parties despite the risks, the Fisher Phillips attorneys recommend several actions that employers can take to reduce their legal liability.
One solution is to have a catered lunch at your offices without alcohol present. If you do hold an event where alcohol is served, you should invite spouses and significant others so that there will be someone there to help keep an eye on your employees and, if necessary, get them home safely.
Always serve food and always have plenty of non-alcoholic beverages available. If your party is a dinner, consider serving only wine or beer (plus non-alcoholic alternatives) with the meal, not hard liquor. Don’t have an open bar where employees can drink as much as they want. Instead have a cash bar or use a ticket system to limit the number of drinks. Close the bar at least an hour before you plan to end the party and switch to coffee and soft drinks from there on.
Also, make sure to let your managers know they will be considered on duty during the party. Instruct them to keep an eye on their subordinates to ensure they do not drink too much and inform the managers that they are not to attend any post-party parties.
Consumption of alcohol lowers inhibitions and impairs judgment, which can result in employees saying and doing things that they normally wouldn’t. The attorneys stress, “Remind employees that, while you encourage everyone to have a good time, your company’s normal workplace standards of conduct will be in force at the party, and misconduct at or after the party can result in disciplinary action.”
Another safety measure is to hire professional bartenders instead of using other employees. Tell the bartenders to report anyone who they think has had too much. Ensure that bartenders require positive identification from guests who do not appear to be substantially over 21. And arrange for a no-cost taxi or another driving service for any employee who should not drive home.
“Finally, never, ever hang mistletoe!” the lawyers warn. “Just as R plus L probably equals J, you can be sure that mistletoe + alcohol = lawsuit.”
Winter Safety Tips from OSHA
The Occupational Safety and Health Administration has issued a Cold Stress Card including tips on handling cold weather. Free copies of it are available in both English and Spanish from the agency’s website or by calling 800-321-0SHA.
OSHA’s tips include:
● Recognize the environmental and workplace conditions that may be dangerous.
● Learn the signs and symptoms of cold-induced illnesses and injuries and what to do to help employees.
● Train employees about cold-induced illnesses and injuries.
● Encourage employees to wear proper clothing for cold, wet and windy conditions, including layers that can be adjusted to changing conditions.
● Be sure that employees in extremely cold conditions take frequent, short breaks in warm dry shelters to allow their bodies to warm up.
● Try to schedule work for the warmest part of the day.
● Avoid exhaustion or fatigue because energy is needed to keep muscles warm.
● Use the buddy system: Work in pairs so that one employee can recognize danger signs.
● Drink warm, sweet beverages (sugar water, sports-type drinks) and avoid drinks with caffeine (coffee, tea, sodas or hot chocolate) or alcohol.
● Eat warm, high-calorie foods such as hot pasta dishes.
● Remember that employees increase their risks when they take certain medications, are in poor physical condition or suffer from the flu or chronic illnesses like diabetes, hypertension or cardiovascular disease.
