Snow Days, Work and the Law: When Does a Worker have a Right to Stay Home due to Snow?

2019 has already brought us more than the average snow days. While this has meant frequent snow days for public school students, most working adults still had to go to work. Do employees have the right to snow days during extreme winter weather?

Is there a law on Snow Days?

The Employment Standards Act (or “ESA”) and Occupational Health and Safety Act (or “OHSA”) govern the basic working conditions of most Ontario employees.

The ESA sets minimum standards for sick days, bereavement and pregnancy or parental leave (aka “maternity leave”) – and addresses what happens when a public emergency is declared. But, it doesn’t talk about snow days or absences on those days where the weather is bad, but not at the level of a public emergency.

The OHSA doesn’t set out a hard and fast rule, either. Instead, it requires employers to take reasonable steps to prevent injury in their workplaces. Depending on the workplace, this could mean giving employees a snow day (or taking other special measures like letting people leave work early or work from home) if its not safe for them to work. Other reasonable steps might include additional breaks, providing warm protective clothing, or slight alterations in job duties -your industry may have specific norms or regulations around these safety measures (the film industry for example ).

 And, employees who work outside and/or do physical labour should always have appropriate training on workplace dangers including things like how to safely shovel, driving in inclement weather, and safe working temperatures, if applicable.

Snow Days & Workplace Policies

Many employers may have inclement weather policies that apply to snow days, or may address this issue in their general Occupational Health and Safety Policies. Others may have rules set out in employee contracts or collective agreements that apply to snow days. Certain industries (such as education) may have other duties that result in snow days for workers and clients alike.

Even in the absence of these policies, employers may have to take the weather into account.

For example, lateness or a missed shift during a snow storm may not be deserving of discipline or cause for dismissal, even if it might be on a clear day. Courts, the Ministry of Labour and Labour Arbitrators are slow to uphold punishment of employees who show up late or miss work through no fault of their own.

Employers may also need to make exceptions or be flexible when school snow days impact their employees. Parents may be late or not be able to attend work if school is cancelled, particularly if they have young children who can’t be left alone. A bit of flexibility on this front, even if the weather itself has cleared, may fall under an employer’s duty to reasonably accommodate employees’ parental obligations (aka “parental status accommodation”).

Does my employer have to pay me for a shift cancelled due to weather?

If your employer chooses to cancel your shift due to weather, they may not have to pay you. The ESA doesn’t require them to do so, so employers only obligations to pay for snow day cancellations arise under employer-specific policies, employment contracts or collective agreements.

However, if your employer closes early and cancels your work day mid-shift, you may be entitled to some compensation even without a policy or contract to protect you. Firstly, you need to be paid for the work you did before the cancellation. Secondly, employees who regularly work more than 3 hours per shift are entitled to at least 3 hours of pay if their boss sends them home early.

Staying Open for Snow Days

Choosing to stay open during snow days can be risky for employers, especially if they insist that all employees come to work as usual.

These risks include the risk of employee injury and claims of discriminatory failure to accommodate. Business might be slow on a snow day, but the risk of fines, lawsuits and WSIB claims – and future shifts cancelled due to injuries – may not be worth it.

Besides, who wouldn’t rather take the day off to make a snow fort close to home?

Resources

Ministry of Labour, Occupational Heath & Safety FAQ