For businesses that may be affected by the Pope’s visit next week, closing your office may seem like the easy option. However, there are some employment law issues you need to be aware of if you intend to close your business for any period of time during the visit:

1. The first thing employers should do is consult its own policies regarding payment under such circumstances (i.e. where, through no fault of their own, employees can’t get to work, such as inclement weather or a transportation strike). Those policies might dictate whether pay is due for a closure by the employer due to the Pope’s visit.
2. An employee who is on FMLA leave during an office closure will have the closed time count against available FMLA leave if the employee is taking leave in increments of a week or more, and would have been out the entire week on leave regardless of the Pope’s visit. If, however, the employee is using intermittent FMLA leave of less than a week’s increment, the office closure time will count against FMLA leave only if the employee would have been expected to be at work had the office not been closed for the Pope’s visit.
3. Businesses that close down will have to determine if they are, nevertheless, obligated to pay their workers for that period. The Fair Labor Standards Act governs the payment of wages. Exempt employees must be paid their full wage for the pay period if they work at all during that period even if the employer closes for one or more days. For example, an exempt employee who is paid on a weekly basis and who works at all during the week of the Pope’s visit but misses one or more days because the employer closes, must be paid for the full week. The employer may, however, require an exempt employee to use paid time off (PTO) for such closure. If the employee does not have any available PTO the employer may not deduct from the wages otherwise due. To do so risks converting an exempt employee to a non-exempt employee and that could have serious overtime pay implications. If an exempt employee is “on-call” during an office closure, he or she must be treated as if working (i.e. must be paid for that time). An employee is deemed on call if the employee is unable to use the time for personal purposes because of the need to be available to tend to the employer’s business.
4. If the employee is a non-exempt worker, the employer is obligated to pay only for hours actually worked. If the non-exempt employee does not work, he or she does not need to be paid. If, however, the employee is able to and in fact does work from home, then even the non-exempt employee must be paid. A non-exempt employee who is “on-call” even though the office is closed must be paid. If the employer does not close down but a non-exempt employee is unable to get to work during the Pope’s visit due to road closures or shut down of public transportation, the employer may require the employee to use PTO. If no PTO is available, the non-exempt employee need not be paid so long as he or she is not on call.

For questions, comments or additional information, please contact Robert Small, Partner in our Employment Practice Group, at rsmall@regerlaw.com or via phone at 215.495.6541.