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Editor's note: This story was originally published in January 2023. The guidance it contains remains relevant as Buffalo Niagara grapples with the first big lake-effect snow storm of the season a year later.
With two deadly winter storms so far this season and three months of winter yet to go, both employees and employers should be prepared for future travel bans.
Both the Nov. 18 storm and the blizzard over Christmas weekend saw travel bans in place for certain areas, including the City of Buffalo. Public officials urged that all "nonessential" travel be halted to keep roads open for emergency vehicles and snow removal. During the blizzard, many took to the roads anyway, leading to motorists stuck in the snow, trapped in their vehicles or disoriented outside, sometimes with dire consequences. The blizzard has claimed at least 40 lives.
“When we get warnings, there are people who take it seriously and those who look out the window and think, ‘It’s not that bad. I’ll take my chances.’ It’s really sad to watch,” said Barry Covert, partner at Lipsitz Green Scime Cambria.
Some of those were people in essential fields, like health care, who felt compelled to go to work during the storm, and other were taking care of loved ones who needed medications or food.
During both storms, officials warned that only essential workers should be on the road — although the exact definition of "essential" remains murky.
What happens if you violate a driving ban?
Whatever the reasons for breaking the ban, some consequences for violating it are obvious: becoming stranded, injury or death.
But what happens if you violate the ban and walk away with only a ticket? Covert said those tickets can amount to a Class B misdemeanor with a $500 fine.
“If the governor or county executive or mayor signs an executive order declaring a state of emergency, that does have some teeth to it,” he said.
It also could come a maximum of three months of incarceration, but Covert said that’s unlikely.
“Tickets would likely be negotiated down and worked out with the prosecutor,” he said. “It would be atypical to even get the maximum fine. If someone repeated violates, then you may have a judge feeling like they need to send a message.”
What if you ask employees to violate a travel ban?
It’s a question that’s come up a few times this month for Arianna Kwiatkowski, a labor and employment attorney with Barclay Damon LLP.
“If a client calls me during the storm and says they’re in the suburbs where the driving ban was lifted but they have an employee in the city that was still under the driving ban, I would say, you do not want to take any adverse action against the employee for not being able to come to work,” she said.
Employers could legally force employees to take paid time off to cover the missed day or days, but Kwiatkowski said she doesn’t recommend that since this storm was so far out of anyone’s control.
Forcing employees to come in could be seen as a workplace safety issue, she said. The National Labor Relations Act has provisions for employees, where if they don’t comply with an employer directive because there’s a workplace safety concern, the employer can’t retaliate against them.
“It’s definitely not advisable if you’re an employer to force or mandate an employee to violate a driving ban, because at that point you’re encouraging a violation of the law,” she said.
Covert said a situation like that could elevate to a complaint with the Occupational Safety and Health Administration.
“The employee could file a complaint with OSHA, indicating they had been asked to do something dangerous or life-threatening,” he said. “I think you’ll have litigation over who is an essential employee, but I think that could be litigated for a very long time. I think for folks who lost someone during the storm, they may try to bring litigation to anyone that they believe could be liable to what occurred to their loved ones, but it’s in a very undefined area.”
On Dec. 26, County Executive Mark Poloncarz tweeted: “It’s illegal for employers to make employees violate a travel ban.”
But, said Jim Grasso, partner with Phillips Lytle, “That’s different from saying ‘I’m going to terminate you for not coming to work.’ ”
Since New York is an at-will employment state, employers could still fire people for not coming in regardless of a travel ban, he said. There aren’t a lot of clear answers where travel bans are concerned because of the infrequency of cases.
Grasso said he would hope employers won't threaten termination during a deadly storm. But if so, there could be a potential liability if an employer insists the employee come into work during a driving ban and that employee gets on the road and causes an accident or injures someone.
“Generally, if someone is injured on their way to or from work, it’s not worker’s compensation, because that’s a part of everyday commuting,” Grasso said. “But in this case, because there’s a travel ban, there could be cause for liability, though it is still murky and unclear.”
Grasso said there’s also no legal liabilities for employers who close during a storm and employees are hurt or injured on their way home.
“There’s no special legal obligation for an employer to care for their employees during a storm,” he said.
Still, there are best practices that every Western New York employer should be accustomed to by now, like keeping track of the weather, travel bans and where your employees are commuting from, Kwiatkowski said. Employers should make decisions on closures before the weather escalates whenever possible.
“If you’re an employer and you know there’s a storm like this coming, anticipate that there could be a driving ban and how you will communicate with your employees,” Kwiatkowski said.