Employers deal with severe weather in variety of ways
On many winter mornings, John McFarland has one ear on the radio and the other on the phone. His firm, Nu-Tek Electric, is based in Alliston, Ont., one hour’s drive north of Toronto and right on the edge of one of the province’s major snowbelts.
McFarland doesn’t have a severe weather policy for his staff of eight but he does have a rule of thumb: If the buses are cancelled, so is business — most days.
“We still call the staff and ask, ‘What does it look like in your area?’” he said. “There could be a blizzard in Bracebridge but (it’s) sunny down in Alliston. If they feel they can’t come in, then fine, they can’t. But if they’re already in for the day and by three o’clock there’s a bad storm coming, we assess it from the office standpoint.”
It’s a tricky call, said McFarland, because his crews are scattered across Simcoe County. He relies on them to make a judgment call when the skies close in, but there are times when they get caught.
“We’ve had people driving in blizzards and lost sight of the roads and had to get tow trucks to come out,” he said.
Almost 200 kilometres west, major electricity generator Bruce Power has a more formal severe weather policy. The company has more than 3,600 full-time and 3,000 contract workers at its nuclear power plant near Lake Huron, between the Ontario towns of Kincardine and Saugeen Shores.
When severe weather hits, an emergency preparedness team goes into action. Employees are divided into three categories, each with its own directive. Critical workers — control room operators and specially trained field staff — are required to come in using company transportation. Those already on-site when a snowstorm hits may also be asked to stay.
“Our business is to produce electricity around the clock. We have provisions of food and sleeping bags available for staff who find themselves at work when a snowstorm hits,” said John Peevers, a spokesperson for Bruce Power.
“But the safety of our employees is our top concern. If the roads that lead to the Bruce Power site are closed, we don’t have much choice but to tell employees to stay home.”
There are multiple unions on-site, each with their own collective agreement that includes details specific to severe weather. At the core, each requires employees make “every reasonable attempt to arrive at work safely and observe road closures,” said Peevers.
“Reasonable” is the key, according to Andrew Pinto, a partner with the law firm Pinto Wray James in Toronto. There are no laws in Canada that dictate when employers must shut the doors in extreme weather.
“It’s ironic that in a place like Canada, where we’re so weather-dependent and people seem to be so obsessed with weather, that we don’t appear to have laws on the books that deal with that,” he said.
The reason likely lies with the interpretation of “inclement” weather and the geography of this country, he said. For example, is the employer located near public transit or in a remote, rural region? Can the type of work be performed from home or be rescheduled? Is it an essential service?
“The overall approach from an employer policy perspective should be one of reasonableness and common sense that’s directed to the interaction between the employer’s requirement and the employee’s individual situation,” said Pinto.
An employee is responsible for getting to work, which could require leaving earlier in the morning or attempting to arrive later in the day once snowplows have cleared streets and highways. An exception might be made if an employer provides group transportation.
“The employer’s responsibility begins once the employer is exercising control or direction over the employee at work, but the getting to work is basically the employee’s responsibility,” he said.
What’s unclear, according to Pinto, is whether or not an employer can force an employee to commute to work in extreme weather.
Occupational health and safety laws are vague on this subject, he said, and only indirectly address extreme weather. In Ontario, for example, employers are required to “take every precaution reasonable in the circumstances for the protection of the worker.”
Again, that speaks only to what happens once an employee has punched in, said Pinto. No one, to his knowledge, has ever successfully sued an employer as a result of having an accident on the way to work in icy or snowy conditions.
Most judges would still hold the employee, or whomever was at fault, “far more responsible than the employer,” he said.
“The employer may be thought to be partially responsible — maybe five per cent of the damages because they shouldn’t have asked the person to come in in the first place — but if the employee has not used their brakes on time or they’re driving like a maniac or the municipality should have salted the roads, then we get into a whole causation question,” he said.
Where the issue becomes less clear is over the issue of discipline and discharge. In a unionized setting, an arbitrator determines whether an employer acted “reasonably.”
“If the weather was truly inclement, if it appeared that nobody else made it in, if it appeared that it would be too long a commute or too dangerous a commute, then there’s absolutely no way that the employer is going to be able to get away with any form of discipline,” said Pinto.
However, employers have won in cases where an employee has made a feeble attempt to get to work. In a non-union workplace, workers could be fired or docked pay for not showing up, but it’s unlikely, he said.
“Most common sense employers — leaving aside whether they could do that from a legal standpoint — from a human resources perspective, this doesn’t make sense unless this is an individual who is taking advantage of the inclement weather.”
Occasionally, employees will submit expense claims for hotel rooms or food if they’re stranded near their job site but, again, “there is nothing in law that I’m aware of that necessitates an employer making a decision to let individuals go home early or to even put them up in a hotel,” said Pinto.
While the legal obligation in extreme weather may be vague, the moral one is not, said Pinto. Employers should give workers reasonable opportunity to work from home in dangerous weather. Likewise, employees should not be too quick to consider a snow day a day off.
John McFarland in Alliston guides his decision by what he would do for himself and his family.
“The bottom line is: If you don’t feel like you can drive in it, don’t,” he said.
Danielle Harder is a Whitby, Ont.-based freelance writer.
