Part 1 in Heatwaves of Drama: A Case Study in "What Not To Do" for Southeastern HR Professionals

In the first installment of our two-part series covering Ward and Smith’s 2024 Employment Law Symposium, three Ward and Smith attorneys illuminated a variety of Human Resources issues by placing a spotlight on a fictional plastics injection company experiencing an A/C outage in the blistering Carolina summer.  

In an interactive case study during Ward and Smith’s annual Employment Law Symposium, the attorneys shared practical strategies for managing safety concerns and employee health, navigating the Pregnant Worker’s Fairness Act, minimizing liability, handling workers’ compensation claims, and determining whether individuals are employees or independent contractors.

The session used the firm’s signature Live-Action Role-Play (LARP) technique to provide insights on how the leaders of a hypothetical company should respond to an A/C malfunction in the middle of July when the team is facing a critical deadline.

The discussion featured insights from Ken Gray, leader of the Labor and Employment Law Group, Amy Fitzhugh, a professional licensing attorney, and Hayley Wells, a labor and employment attorney.

Fitzhugh sparked the discussion by presenting background information on the fictional company Precision Plastics Molding, which produces everything from medical devices and car parts to smartphone cases and toothpaste caps.

“Right now, they’re focused on sunscreen bottles and caps since it’s literally the heat of summer,” laughed Fitzhugh.

The (again, fictional) plant is located in Raleigh, North Carolina, in a three-story building with manufacturing on the ground floor and offices above. Established in the 1970s, the company continues to operate in the original processing plant that was built in 1973.

“Temperatures are nearing 95 degrees, and the plant cannot shut down, or it will miss a highly pivotal deadline,” noted Fitzhugh. “Work continues, and heat waves of drama follow.”

Does a Company Have to Pay Workers in the Event of an Emergency Company Shutdown?

Determining whether it is a requirement to pay the workforce in the event of a shutdown is a hot-button issue for business owners. “Employees that are salaried would have to be paid, even if they only worked a portion of the week,” advised Wells. “This applies to both salaried exempt and non-exempt employees.”

There is no obligation to pay hourly employees or allow them to make up the time. “The answer about payment, therefore, is it depends,” commented Wells.

Is a Private Sector Employer Required to Have an Adverse Weather Policy?

The attorneys advised that companies should have a policy outlining the procedure for adverse weather conditions, though it is not required. “Having a policy is a good idea because we have a lot of hurricanes. The western part of the state has snow days; work and school may be cancelled in the eastern part if snow is even in the forecast,” joked Gray. “Policies ensure the employees have clear expectations, and it makes it easier to be consistent.”

A policy could outline how to manage communications if a closure is required due to adverse weather and how employees who voluntarily stay home should be treated. “In most cases, an employer can require an employee to report to work even when the weather is bad,” Wells explained.

Exceptions could include a curfew and/or governmental order; however, a state of emergency would not be enough. “If staying open in bad weather is important to the workplace, you can make employees report in the rain, sleet or snow.

Does a Company Face Liability if it Requires a Pregnant Worker to Stay to Ensure a Deadline is Met?

Samantha is a line technician at Precision Plastics who is four months pregnant with twins. Her doctor recently told her it is vital not to get overheated since she is having twins. It's very hot in the on the manufacturing floor due to the A/C failure, so Samantha asked to leave because of mild contractions. Samantha's supervisor, named Rooster, denied the request.

What Reasonable Accommodations Does a Company Have to Provide to a Pregnant Worker?

Tears started flowing when Samantha explained the situation to a member of the HR team. “Samantha is experiencing symptoms and requesting an accommodation,” noted Wells. “Under the Pregnant Workers Fairness Act, the company is required to engage with her in an interactive process.”

This does not mean either party can dictate the terms; only both parties are required to engage in a dialog reviewing the essential functions of the job. There should also be a discussion about any possible modifications that could allow the employee to continue doing the job.

Pregnant workers receive more leeway from the EEOC than other employees since it is a finite condition. “Some conditions under the ADA go on for years,” said Gray.

In some cases, employees are continually written out of work until all their paid leave is gone. “The employer is constantly having to accommodate and may wonder, how long do we have to deal with this? Fortunately, the EEOC will get to a point where they feel your pain,” added Gray.

When that occurs, taking an adverse action against the employee may be possible. The explanation is that the person is incapable of performing the essential functions of the job with or without accommodation.

Can a Company Require a Pregnant Worker to take Leave until the Birth of the Child?

Rooster, the line supervisor, is furious with Samantha for risking the company production deadline. He thinks that if "she can’t stand the heat, she should get out of the kitchen."

Rooster worries about his job and blames Samantha for causing a disruption. He wants her to be removed from his department and placed on leave until the twins are born.

The law is clear, and a company is not permitted to force an employee to take a leave until after a pregnancy. However, engaging in an interactive process to identify any possible accommodations is required.

The process should be ongoing to coincide with the needs of the employee. At 30 weeks, for example, Samantha may need to sit and have water more frequently. “It’s unlawful to force an employee to take an accommodation,” Wells explained. “Retaliating against employees for asking questions or asserting their rights is also unlawful.”

The EEOC website has an extensive list of examples of reasonable accommodations for pregnant workers. A few of the most common include allowing for more frequent breaks, periodic leave for doctor’s appointments, shorter hours, or a modified dress code/uniform.

Similar to other workplace issues, documentation is key. “A mistake that employers often make is failing to document a decision adequately. If you don’t have it in writing, it didn’t happen,” Gray advised. “Using email is essential for generating a paper trail since it has a date and time stamp.”

Read Part Two here.

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This article is not intended to give, and should not be relied upon for, legal advice in any particular circumstance or fact situation. No action should be taken in reliance upon the information contained in this article without obtaining the advice of an attorney.

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