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Vacation time and pay

Currently, all of our full-time employees are accruing PTO from when they were hired. I have 20 different start dates and I am finding this difficult to keep track of each individual’s accrued time through out the year. Is there a formula for having everyone’s PTO on the same calendar year Jan – Dec?

Neither federal nor state law requires employers to offer PTO or vacation time to their employees. Employers who do choose to provide this benefit may establish their own policies regarding how time accrues, when it can be used, any length of service requirements, etc.

There is no one correct way to handle this; each organization sets up its vacation system as it sees fit. Some employers provide a lump sum of vacation time at specified times, typically the first of every calendar year, while others have their employees accrue time at regular intervals throughout the year, such as every month or every pay period. Keep in mind that while there are numerous way to set up your PTO system, there are pros and cons to each method.

For example, if ease of administration is your primary concern, you can provide a lump sum of time on each January 1st. However, this potentially could lead to employees using their entire allotment early in the year, and then terminating employment. Or they could resign effective January 2nd, and may – depending on state law and/or company policy – be owed the entire amount of time that was awarded to them the day before. Additionally, if vacation is allocated to all employees on January 1st, for example, then those hired early the year before would have to wait 11 or more months in order to take any time off, while those hired later in the year need only wait a few weeks.  Because of these reasons, it is more common for employers to move from the lump sum method to an accrual system than the other way around.

Another option would be to award PTO based not on hire date, but rather on years of service by a particular date each year. That way, you would adjust the accrual rates for all employees on the same day each year, based on their individual years of service as of that date.


Medical Information

Is it true that medical informaiton must be kept in a separate file from the employees HR file? We are moving to a paperless system soon and I am not sure how this will affect a paperless environment if in fact this is accurate.

Yes, employee medical information, including requests for FMLA leave or ADA accommodations, must be kept confidential and maintained separately from the employee’s personnel file. In a paperless system where records are kept electronically, one way to accomplish this would be to use separate databases, each of which can only be accessed by the appropriate personnel.


negative leave balance

Our company is headquartered in PA with offices in VA. Our current policy allows employees to borrow leave up to a maximum of 40 hours. Is it legal in PA or VA to deduct negative balance from final paycheck. If we decide to change policy and not allow employees to borrow leave in the future, can we deduct negative balances from employees in a regular paycheck to start off the new coming year with a clean slate. Thank you.

First, be aware that even under federal FLSA requirements, recovering negative leave balances from the final paycheck can be problematic, particularly when dealing with exempt employees.

For exempt employees, the FLSA does permit deductions for full day absences due to personal reasons. However, because you are not permitted to deduct for partial-day absences, your recordkeeping must be detailed enough to show that each of the absences were for full days. Many employers do not keep detailed records of exempt employee working hours since this is not required by the FLSA. Additionally, you would need to ensure that any deductions do not bring the exempt employee’s salary below the $455 weekly salary threshold.

For both exempt and nonexempt employees, what you are essentially dealing with is a loan, as you have paid in advance for time that has not yet been worked (or leave time that has not yet been earned). Pennsylvania DOL regulations do permit deductions for repayment of bona fide loans, as long as the employee authorized the deduction in writing at the time of the loan or subsequent to the loan. Virginia does not specifically address wage deductions for loan repayment, but stipulates that no deductions can be made without the employee’s written consent.

While it is theoretically possible to legally deduct a negative leave balance from an employee’s check, it is not advised.  A better solution may be to instead deduct the negative balance from subsequently earned leave time, rather than deducting money from the paycheck. And going forward, if you decide to continue allowing employees to borrow against future leave time, you may at least want to limit the borrowed leave to an amount that can be earned back within a short period of time.

Whichever option you choose, you will need to make sure employees are notified in advance of how the negative leave time will be repaid.


Pregnancy Leave

If a pregnant employee who works for a non-FMLA company (less than 50 employees)is being required by their doctor to take an early leave due to complications (two months before due date) plus already indicating she can return to work 6 weeks after delivery, is she protected by any law to expect her job to be available after the birth of her child OR anytime from the time she leaves?

If you are in one of the states that offers a more generous family leave entitlement than the federal FMLA, then you need to comply with the regulations in that state. For example, Vermont’s state Parental Leave Law also allows up to 12 weeks of leave, but unlike the FMLA it applies to all employers with 10 or more employees.

Even if you are not subject to the FMLA or a state regulated family leave law, you may still need to comply with the federal Pregnancy Discrimination Act (PDA). This law applies to employers with 15 or more employees and prohibits discrimination based on pregnancy. If you are covered under this law, you are required to treat pregnant employees the same as you would treat any other temporarily disabled employee.

The PDA does not require any specific amount of leave, but if you provide disability leave for employees who have other temporary disabilities, then you must provide the same for pregnant women. The amount of time, if any, provided is up to the employer, but must not be any less for pregnant women than it is for other temporary disabilities.


Terminating because of physical limitations.

Can I terminate an employee who is unable to use her hand without them swelling? Employee is required to perform a repetitious movement all day. She keeps going to the doctor where they give her an excuse for the day. She has ask to move to another dept. I don’t have another dept. where not using her hands are an option.

If this employee’s job requires repetitive motion, it is very likely that her physical condition is caused by, or at the very least exacerbated by, the job. If this is the case, you are dealing with a work-related injury, which may or may not be OSHA-recordable, and you will need to treat it as you would any other work-related injury or illness. If, as I suspect, the employee’s injury qualifies as a workers’ compensation claim, your first order of business should be to ensure that the employee receives proper medical care. The physician can then help you determine how to proceed including whether or not the employee needs to be taken out of work for a period of time, whether or not she can continue on her present job, if she needs to be placed on restricted duty, etc.

Whatever you do, it is advised that you do not even think about terminating this employee until you determine whether or not this is a work-related injury, as it is illegal to retaliate against an employee for exercising their rights under workers’ compensation law.

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