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Sep02

Vacation-Exempt employees

If a salaried exempt employee has used all their vacation time and still wants more time off, can the employer deduct for these days?

It is permitted under the Fair Labor Standards Act (FLSA) for an employer to deduct time from an exempt employee’s paid sick leave or other paid time off balance for absences. Once all paid time off benefits have been exhausted, you are under no obligation to provide additional vacation time. If you do choose to allow an exempt employee to take additional vacation days, you may deduct from his or her pay for full day absences for personal reasons other than illness or disability. There are also several other situations in which an employer may dock an exempt employee’s pay, none of which are relevant to the situation described in your question above.

Aug30

Full time wants part time

HI. I hope you can answer this. We are in the state of California. We have a Full time employee that is going on maternity leave. She states that when she returns from her maternity leave she only wants to come back part-time at 6 hours or less per day. Unfortunately for her position, part time does not work for my practice. I am a small dental practice with 3 full time staff members and I need her to be full time, not part time. How do I handle this with out any issues.

In general, no employer is required to create a special position or shift for an employee simply because that employee wants to set their own schedule. You do not mention that the employee is disabled in any way, but an exception might be if she does fall under ADA coverage. If this is the case, a part-time schedule may be a reasonable accommodation you could agree upon as you & the employee go through the interactive process.

Even if ADA does not apply, you may still want to consider the possibility of either allowing a job-sharing arrangement or converting one of your full-time positions into two part-time positions, especially if this is an employee you would like to retain. Today’s employees place a high value on workplace scheduling flexibility and many companies are finding that offering such options leads to lower turnover and increased morale. It may be worth at least investigating whether or not some type of non-traditional scheduling could work for your organization.

Aug30

vacation pay

can an employer have a policy stating that an employee cannot take any earned PTO until they have worked an entire year? Second, can the employer force an employee to forfeit any earned PTO if not used by their anniversary date?

Employers are not required to provide paid or unpaid vacation, and those that do choose to provide this benefit may establish their own policies regarding how and when time is earned, when it may be used, eligibility requirements, etc. It is permitted to offer different vacation plans to different groups of employees, such as exempt and nonexempt employees. It is also acceptable for an employer to require a minimum length of employment or number of hours worked per week in order to be eligible for vacation.

However, the answer to your second question will depend on the state you are in. Although no employer is required to provide any vacation time, once they do, employers in some states are regulated regarding such issues as whether or not they must pay out earned, unused time at vacation upon termination and/or whether they can institute a “use-it-or-lose-it” policy, whereby vacation must be used by a certain date. For specifics on your state’s requirements, please re-post indicating your state.

August 30th, 2014, 12:23 PM |  Posted in: Benefits, Human Resources Management, Labor Laws |
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Aug27

STD – employer notification

Does an employee on STD (no FMLA)the company is smaller than 50 employees)have to keep in touch with the employer? If an employee has been out since June (disability payments began in July) are they expected to keep in touch so the employer can plan accordingly?

Unless you are in one of the few states that have state-mandated disability insurance requirements (California, Hawaii, New Jersey, New York, & Rhode Island), employers are not required to provide this benefit at all. Those employers who do choose to offer short-term disability are free to establish policies as they see fit, including how and when an employee on leave must update the employer. How often this should occur may depend on the length of the anticipated absence, and it is recommended that these requirements be addressed in your leave policy.

Aug27

Questions about ADA law and how it relates to maternity leave

Hi. I am employed in a small business of 15 people. I have taken it upon myself to make an employee handbook. I have no training in HR but am learning as fast as I can. I want to have a maternity leave policy. Based on employees with previous maternity leaves, I think up to 8 weeks unpaid leave is what my boss and I will go with. My questions are 1.) If we give an employee 12 weeks unpaid leave for maternity do we have to offer that to all employees to be fair? 2.) If we have an employee who, say, had to go through chemo for cancer and they went on disability leave during that time and came back after 10 weeks, then do we have to offer 10 weeks as standard unpaid maternity leave as well? I am trying to understand the relevant connection between ADA requirements to the small business and maternity leave policy. My boss thinks if we simply do not have a written policy on maternity leave but more verbal policy on a case by case basis that we will avoid any issues with the law. Ha ha ha. He is funny. I’m pretty sure it is better to have a written policy that is enforced fairly is the best way to go on this matter.

Kudos to you for taking on the task of developing an employee handbook! You are 100% correct that it is always better to have established policies in place, rather than deciding things on a case by case base. In HR matters, consistency and following your own policies is the name of the game.

There are several issues to address here. First, the Americans with Disabilities Act (ADA) requires employers with 15 or more employees to provide reasonable accommodations for qualified individuals with a disability. Pregnancy, in and of itself, is not considered a disability and thus does not meet the standard for protection under the ADA unless there are complications that result in disability. This would include such impairments as gestational diabetes, preeclampsia, high blood pressure, etc.  Under ADA, a leave is a possible accommodation, but this would be determined after going through the required interactive process with the employee to determine the type of accommodation that is needed.

Secondly, the Pregnancy Discrimination Act (PDA) also applies to employers with 15 or more employees, and prohibits discrimination based on pregnancy or childbirth. PDA requires that employers treat pregnant women the same as they would treat any other employee who is temporarily unable to perform his or her job due to a medical condition.  If an employer provides a sick or short-term disability leave for other ailments, then they must do the same for pregnancy-related medical conditions.

Finally, you do not mention the state you are in, but be aware that in addition to the federal statutes, there are state-specific leave laws that mandate various amounts of family/medical leave; in some cases the leave time must be paid.

You are wise to look at how leave requests have been handled in the past when establishing your policies. However, if in reviewing the past you find some inconsistencies that you now wish to correct, you may certainly do so. Be sure to notify all employees of the new policies so they know how leave requests will be handled going forward.

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