Can You Be Fired For Staying Home During The Winter Storm of 2021?
Can my boss fire me for not driving to work during the Central Texas winter storm if I’m facing unsafe driving conditions?
Texas is facing a extremely dangerous winter weather over the next few days. The Governor has already issued a disaster declaration for all 254 counties in Texas, from Dallas to Brownsville which includes all Central Texas counties. In many locations, the high temperature will be in the single digits, temperatures that are unprecedented in Texas history. Every part of the state is expected to get snow or ice. State and local road crews cannot guarantee safe passage. Roads are one of the biggest challenges. The Governor urged Texans to avoid going out if possible. However, businesses currently remain open, and road closures will ultimately be left up to law enforcement and local officials.
What Are Your Rights?
If your job is staying open despite the Governor’s request to stay home and demands you drive in inclement weather and you refuse for your own safety, can your boss fire you for not driving in dangerous conditions?
Most employees in Texas are “at will,” meaning they can be fired for any reason at all, as long as that reason is not illegal. Is firing a Texas employee who stays home to avoid driving on icy roads illegal? There are a few laws that might apply in this situation.
Texas Public Evacuation Protection
First, there is legal protection for complying with a public evacuation order. Section 22 of the Texas Labor Code provides that “[a]n employer may not discharge or in any other manner discriminate against an employee who leaves the employee’s place of employment to participate in a general public evacuation ordered under an emergency evacuation order.” An evacuation order “means an official statement issued by the governing body of this state or a political subdivision of this state to recommend the evacuation of all or part of the population of an area stricken or threatened with a disaster. The term includes a declaration of local disaster under Section 418.108, Government Code.” This protection exempts emergency and vital services personnel.
As of February 13, the Governor has not issued mandatory orders. If the Governor later closes businesses or roads, this statute should provide protection. Also, because evacuation is defined broadly and includes local disaster declarations, if your County Judge later issues a declaration closing the roads (and closing businesses), that should give you legal protection against being fired for staying home during the storm. So, keep an eye on the Travis County Judge, Hays County Judge, Williamson County Judge, and Bastrop County Judge to determine what most rules govern most Central Texas employees.
Ultimately, this law protects you from retaliation only if the Governor or County Judge in your county issues “evacuation” orders closing roads and/or businesses.
Texas Refusal to Commit Crime Protection
In Texas, courts have long held that employers are prohibited from firing employees for the sole reason of their refusing to perform an illegal (criminal) act. For example, an employer is prohibited from firing you for your refusal to dump toxic waste down the drain, or your refusal to assault another person. We call this the Sabine Pilot cause action, named after the case that started it.
Here, if a state or local order is issued that makes it a crime to drive to work (orders like this were commonly issued by local authorities early in the pandemic limiting movement to only non-essential workers), you could refuse to work and would be protected.
Can My Boss Dock My Pay?
If my boss lets me stay at home, can they dock my pay? Generally, yes. Employees who are non-exempt under the Fair Labor Standards Act (FLSA) like retail, hospitality, and restaurant workers are generally not entitled to pay unless they work their shifts. Employees who are exempt and usually get paid a salary can also be docked for full day absences under certain circumstances. Check your employee handbook, your employer may allow you use PTO in this situation.
It Is Not Safe To Drive. My Boss Says I Have To Come In. What Do I Do?
Layers of snow and ice makes the roads between your home and work impassable. Yet, your boss says you need to come in. What to do?
Discuss this with your employer. Document your requests to find a reasonable solution. Look for workarounds to cover shifts or if you have to be there, increase the safety of your travel to and from work. Organize your coworkers to oppose the unsafe request as a group – there is strength in numbers.
Ultimately remember, your safety is the most important thing. There may be more jobs down the road, but you only get one life to live.