Employee tardiness is a significant problem for employers – and bad weather is one of the top three reasons that employees give for it according to the National Post. Given Canadian winters, it’s important that employers understand how to effectively manage employee tardiness and absenteeism caused by adverse weather conditions.

Here are three tips to help employers manage employee tardiness due to adverse weather conditions.

1. Implement a “reasonable lateness” policy

“Reasonable lateness” policies give employers a framework within which to manage employee lateness based on adverse weather conditions. The policy could be a “stand-alone” policy or the employer could include it within the context of a more general attendance (or absenteeism) management policy (or “AMP”).

Reasonable lateness policies are intended to recognize employees for the reasonable time and effort they’ve spent attempting to get to work, and eventually attending work, for their scheduled shift in the midst of adverse weather conditions. They aren’t intended to require the employer to compensate an employee for not being at work. Rather they are designed to ensure that employees who arrive late at work during adverse weather conditions aren’t disciplined and don’t suffer a loss of income where the direct cause of their lateness is the adverse weather. The policy should:

• Deal with early departures, as well as with late arrivals, due to adverse weather.
• Confirm that lateness due to individual or personal circumstances (such as place of residence, family responsibilities, transportation problems, car pools or the inability to clear out the employee’s driveway) isn’t “reasonable lateness” under the policy.
• Set out the expectation that for approval of tardiness under the policy, an employee must adjust the time at which she begins preparation for work to take into account all issues that would normally arise in adverse weather conditions, such as snow-covered roads, slow traffic and other similar conditions brought on by poor weather.

Typically, employees must either make up missed time or deduct it from vacation or banked time or, as a last resort, take the time as leave without pay. However, many employer policies do make an exception for this when the employer closes the worksite altogether because of bad weather conditions. If this is the employer’s approach, the policy should set it out along with how the employer will advise employees of the closure.

2. Assess the reasonableness of each request on a case-by-case basis

The most difficult task for the employer: determining whether the employee’s lateness is, indeed, “reasonable” – or if the employee was just plain late. It’s the employee’s responsibility to justify her lateness to the employer’s satisfaction, and the employee is therefore responsible to explain to the employer her efforts to attend work.

In applying a reasonable lateness policy, the employer has absolute discretion to determine what constitutes reasonable efforts by the employee. However, in judging that reasonableness, one size doesn’t fill all; the employer must always base its determination on the specific individual circumstances on a case-by-case basis.

It’s helpful for employers to develop a form for employees to complete to make a request for reasonable lateness approval. Such a form will enable the employer to obtain the information from employees that it needs to process a request for approval of lateness on the basis of adverse weather conditions, including:

• The employee’s name, position and work location (if applicable).
• The date the employee was late.
• The time the shift started and the time the employee arrived (or the time the shift ended and the time the employee left, as the case may be).
• The employee’s description of what efforts she made to arrive at work at the scheduled time.
• An invitation to the employee to provide information as to extenuating circumstances beyond her individual situation that resulted in the lateness, such as highway closures, bridge closures and other similar type situations that impact on the general community as a whole.

3. Consistently enforce the reasonable lateness policy

As with any policy, the employer should be sure to enforce a reasonable lateness policy in a consistent manner. Using the following checklist to review each request will assist the employer to do so:

• Was a state of emergency declared? If so, for what time period and what location?
• What is the start time for the employee’s shift?
• What time did the employee arrive at work?
• What efforts did the employee make to arrive at work on time?
• How much time did the employee spend on efforts to travel to work for the scheduled shift?
• What is the usual amount of time the employee is required to travel from her residence to her primary worksite?
• What is the employee’s address?
• Is the route from the employee’s address to her worksite along primary, secondary or tertiary roads?
• What is the usual snow removal priority on the employee’s route to work (i.e., is it a primary clearance route)?
• Were snowplows on the road?
• Were roads between the employee’s residence and her worksite open or closed?
• Is access to the worksite controlled by the employer, or is it privately controlled?
• Was the worksite open?
• If the worksite was closed, at what time did it close?
• Did the employer tell employees not to come to work? If so, at what time?
• Were adverse weather conditions (including severity) predicted in advance of the storm’s onset?
• Were reasonable accommodations available for the employee to stay over at the worksite?
• Was an RCMP or police warning issued requiring motorists to stay off the roads in the employee’s area of work?

To learn more about 10 of the top employers’ attendance – and absenteeism – management problems, and some tips to help employers deal with them, read McInnes Cooper’s: 10 of the Top Employers’ Attendance Management Problems.

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Please contact your McInnes Cooper lawyer or any member of the Labour & Employment [email protected] McInnes Cooper to discuss this topic or any other legal issue.

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