Human Resource Blog

Salaried Employee on FMLA

The state is Colorado, the employee is returning from FMLA due to surgery and is an exempt employee that has exhausted all sick leave. The employee will return to work but only for 4 hours per day and will be considered on intermittent FMLA. Is it allowable to dock this employees salary by the 4 hours per day they will not be working?
Under federal and Colorado law?

Yes, this is acceptable. Generally, under FLSA, the federal Fair Labor Standards Act, an exempt employee who works even a few minutes must be paid the entire days salary. However, one of the very few exceptions to this rule is under FMLA, the federal Family and Medical Leave Act. Because FMLA leave is unpaid, the employees salary can be prorated based on the amount of FMLA taken. Example: Jane normally works 40 hours per week. After surgery, Jane uses intermittent FMLA to work only 20 hours per week. Jane can legally be paid 50% of her salary.

The total unpaid FMLA leave is still limited to 12 weeks. If the employee normally works 40 hours per week, she has 480 hours of FMLA. Once those 480 hours of FMLA are exhausted, she usually must return to her regular job, full-time.

There is also an exception for an employer who grants a modified work schedule as a reasonable accommodation to a disabled employee under the ADA. According to the EEOC, under those circumstances, the exempt employees salary can be prorated.

Read more about FMLA at:http://www.dol.gov/esa/whd/fmla/

Read more about the ADA at: www.eeoc.gov