Tornado Warnings, Pregnant Employee’s Excessive Breaks, and Delayed Bereavement Leave

Welcome back to another edition of HR Basecamp Roundup! This week, we tackle some interesting and common issues that come up in workplaces more often than you think. If you haven’t joined our HR Basecamp Facebook group yet, be sure to join so you can participate in these discussions in real time! 

Podcasts and Resources in this Roundup:

• Exempt vs. Non-Exempt Status: It’s More than Just Salary vs. Hourly!
• Who Gets Paid When Your Office Closes Due to Disasters or Inclement Weather?
• Understanding the Pregnant Workers Fairness Act: What You Need to Know
• What the Hell Just Happened?! Podcast Episode 502: The Pregnant Worker’s Fairness Act
• COMPLIMENTARY FORM: Employee Concern Form

1. Do I have to pay employees during a week-long closure due to tornadoes?

Question:
“Last week, our area was hit with severe weather, including tornadoes. On Sunday, we decided to close for Monday and Tuesday and ultimately canceled the entire week due to the weather. I told employees, including our office manager, that they could use any accrued time off. Now, she’s saying she’s owed for the full week because she worked a few hours remotely. Is that true? And what about the rest of the team?”

The Legal Side:
You are required to pay some employees—depending on how they’re classified.

• Non-exempt (hourly) employees are only paid for hours actually worked. Generally, you’re not required to pay them during closures. Some states have “reporting pay” laws, but based on your location, those don’t apply to you.
• Exempt (salaried) employees must be paid their full weekly salary if they do any work at all during the week—even just a few hours from home. If your office is closed the entire week and they perform no work, you do not have to pay them.

The Human Side:
Extended closures are tough on employees’ finances. We like that you allowed the use of accrued PTO—and even consider offering advances if your state allows you to recoup those at separation. Letting employees make up time later is another flexible option, if business needs allow. (Yes, we slipped in a little weather pun.)

Looking ahead, make sure your employee handbook includes an inclement weather policy. A good policy makes expectations clear and decisions easier.

Extra Credit Reading:
Who Gets Paid When Your Office Closes Due to Disasters or Inclement Weather?

2. A pregnant employee is taking breaks every hour. Can I push back?

Question:
I’m trying to accommodate a pregnant employee’s need for more breaks. Between morning sickness and bathroom breaks, it is starting to feel excessive. Sometimes she’s stepping away every hour. Other employees are starting to get resentful. Is there anything I can do?

The Legal Side:
The Pregnancy Workers Fairness Act (PWFA) requires employers with 15 or more employees to provide reasonable accommodations for known limitations related to pregnancy. If you are a smaller employer, there’s a good chance that a local law has similar requirements. 

The PWFA considers some accommodation requests to be so common and based on known limitations caused by pregnancy, that employers are presumed to be able to offer them without undue hardship and without needing something in writing from the employee’s doctor. Frequent breaks (for nausea, fatigue, or bathroom use) are examples of accommodations that are specifically called out in the law’s guidance.

So, if your employee communicates a pregnancy-related need for more frequent breaks, you are generally required to accommodate it — unless you can show it creates an undue hardship, which is such a high bar under the PWFA that it rarely even enters the discussion.

This means that you do need to continue providing breaks to your employee. If, and only if, you have objective reason to believe the breaks are not truly necessary, you could consider asking the employee for more specific information from her doctor about the need for breaks. We could see that arising if, for instance, you overhear the employee talking about how she’s trying to avoid as much work as possible and still get paid. Even then, you should consult with an expert like those at CEDR before trying to reduce the pregnant employee’s break time.

The Human Side:
You’re right to tread carefully—pregnancy protections are strong, and any adverse action can carry risk. What you can do is have another conversation with your employee to verify what her current needs are due to her pregnancy.  

You don’t want to suggest reducing her breaks, but you can ask how she’s doing and if there’s a way to create a more predictable break schedule. Make it clear you’re looking to support her and the team.

As far as the rest of the team, you can remind them that you are providing temporary flexibility to support a team member’s health needs, and you appreciate everyone’s support and professionalism. If they have specific concerns about workload or tasks not being completed, they can come to you privately. 

Extra Credit Listening:
What the Hell Just Happened?! Podcast Episode 502: The Pregnant Worker’s Fairness Act 

3. An employee wants bereavement leave months after the loss. Can I require them to use sick time?

Question:
An employee is asking to take time off months after the loss of a child. She’s really struggling, and we want to support her. She only has sick time left. Can I require her to use that? I want to make sure we’re consistent and not making any mistakes.

The Legal Side:
There are two policies you should have in your Employee Handbook to help you decide how to handle this – bereavement leave and sick leave. 

Over the past two years, several states passed laws protecting employee time off for bereavement. Those laws address whether the time is paid or unpaid, and whether employers can require employees to use any accrued paid time off. If you don’t know if one of these laws apply, contact CEDR to find out how we can track all of this for you! 

Almost all employee handbooks address taking time off when an employee is sick. But what many employers and employees sometimes don’t think about is the ability to use sick days for mental health reasons. 

Over 25 states, cities, and counties require employers to provide paid sick days, and almost all of those laws state that employees can use their sick days for mental health reasons. If there is an applicable sick leave law, be sure to check whether you are able to require an employee to use sick time to cover their absences. 

If your state mandates bereavement or sick leave, follow those rules first. If not, you have some discretion and can likely require your employee to use their accrued paid time off to cover their absences. 

The Human Side:
You’re right to want consistency—and also to want to support someone facing unimaginable grief. If you choose to allow flexibility with one employee (such as using sick time for bereavement, even if not technically required), be prepared to offer the same option to others in the future.

Because this is a very individualized situation, your employee may not realize that they are able to use their sick time for their absence. If they have paid sick time available, it’s very likely they’d prefer to use that time if they know it’s an option. 

We’re sorry for what your employee is going through. Sometimes, being an employer also means showing up for someone when they need it most.