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Time off for a salaried employee

If a salaried employee takes off a minimum of 3-4 days a month along with vacation requests, are we allowed to deduct pay?

Maybe, if the employee has used all her sick time, or is covered by FMLA or ADA. If we understand this question correctly, in addition to using all of her allotted vacation time, this salaried exempt employee is also taking 3 to 4 days per month off. Presumably, those days are unscheduled and are days when you would normally expect the employee to work.

Under the federal FLSA or Fair Labor Standards Act, an exempt employee must be paid his or her full weekly salary, regardless of how many or how few hours the employee works in the week. So if the employee is just taking off *because* or because she feels she has already worked enough hours in the week, you can disipline or terminate her for not meeting your performance expectations — but you must still pay her full weekly salary.

Ironically, an employer who does not offer any paid sick leave must always pay exempt workers when they are out sick under federal law. However, if the employer offers sick leave, and the employee exceeds the allowable number of sick days, the exempt employee need not be paid for the additional days off. (And, the employee can be disciplined or terminated for excessive absenteeism, if the absences are not covered by FMLA or ADA.)

If the employer has more than 50 workers within 75 miles, and the employee has a serious health condition, then the employee may be entitled to unpaid, job-protected FMLA leave under the federal Family and Medical Leave Act. An exempt employee need not be paid for any time take off under FMLA, even if the time is intermittent.

If the employee has a disability as defined by the EEOC, then the employee may be covered under ADA. An altered or reduced work schedule is a very common accommodation under ADA. And, the employer is permitted to prorate the exempt employees salary, based on the hours worked when granting this accommodation.

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11 Responses to “Time off for a salaried employee”

  1. FMLA law Family Medical Leave Act update, Latest cases on FMLA Law : FMLA Law News Update March 4 Says:

    [...] » Time off for a salaried employee Human Resource Blog By Caitlin Maybe, if the employee has used all her sick time, or is covered by FMLA or ADA. If we understand this question correctly, in addition to using all of her allotted vacation time, this salaried exempt employee is also taking 3 to 4 days … Human Resource Blog – [...]

  2. Carole Says:

    I have an employee who wants to take two days off.

    He is a salaried employee, to date he has accrued 2 days paid vacation. Can I apply his vacation pay to the two requested days off?

  3. Caitlin Says:

    Hi Carole! Yes, you can and should apply this employees 2 days of vacation time to his time off. If you allow the exempt employee to take unpaid time off whenever he likes, you may find his work schedule unpredictable. Requiring the employee to use vacation time is one way to control the total number of days off that the employee uses. There is no law that requires the employee to give permission for you to dock his vacation time. HTH, and thanks for reading the blogs!~ Caitlin

  4. Debbi Says:

    So if I have an employee in Florida is salaried exempt and we DO NOT have a sick leave policy – if the employee schedules time off (surgery, personal, etc) – and has no vac time available – can we deduct from his salary for those days he is going to be off? and if he does have vac available – does he have to use that vac time first or is it his choice to take it without pay?

  5. Caitlin Says:

    Hi Debbi! No, when an employer offers no paid sick leave, an exempt salaried employee must be paid for any days they miss due to illness. You can require that the employee use vacation time if he has it available. If he has no vacation time available, you still have to pay his usual salary for the week, if he works any time at all that week, even a few minutes. HTH, and thanks for reading the blogs!~ Caitlin

  6. Linda Says:

    We have an employee who is a salaried worker and he was out the whole week due to surgery that was performed. He has 1-1/2 days left of personal time. Are we obligated to pay him/her on the remaining 28 hrs?

  7. Caitlin Says:

    Hi Linda,

    If your company has a bona fide paid sick leave program, and the employee exhausted all sick leave under that plan, you can pay him only for the hours of sick leave. However, the employee is entitled to his full daily salary for any day in which he does any work at all, even for 5 minutes, even checking email from home. HTH, and thanks for reading the blogs!~ Caitlin

  8. Lori Kresho Says:

    If an employee is salary and they request to leave early during the work day to go on vacation should they be deducted the vacations hours from the time they left to the end of the work day.
    If an employee is salaried, as long as they work a few minutes of the day they are to be paid for the whole day regardless of vacation or car broke down and came in 5 hours late or sick and only worked a half a day? When is a salaried employee docked for sick and vacation? Is it when they are gone the whole day and then sick or vacation time is used?

    Thank you for your help

  9. hrlady Says:

    Hi Lori, You may require the employee to use his vacation time for any vacation days including partial days. It’s really up to the employer to establish a policy regarding vacation time usage. Partial day use of vacation time even for exempt employees is fairly common. Just to be clear, salary is a method of payment whereas exempt is a classification under the federal Fair Labor Standards Act (FLSA). Exempt employees must receive their full predetermined salary for any week during which work is performed, regardless of vacations or personal time. Yes, this applies even if the employee worked only five minutes. Deductions from exempt employees’ pay is permissible in limited circumstances including:
    • When an employee is absent from work for one or more full days for personal reasons other than sickness or disability;
    • For absences of one or more full days due to sickness or disability if the deduction is made in accordance with a bona fide plan, policy or practice of providing compensation for salary lost due to illness;
    • To offset amounts employees receive as jury or witness fees, or for temporary military duty pay;
    • For penalties imposed in good faith for infractions of safety rules of major significance;
    • For unpaid disciplinary suspensions of one or more full days imposed in good faith for workplace conduct rule infractions;
    • In the employee’s initial or terminal week of employment if the employee does not work the full week, or
    • For unpaid leave taken by the employee under the federal Family and Medical Leave Act.

  10. Emily Says:

    I have an exempt employee in CA who has an infection that he can’t come to work. He may be off for 2-3 weeks. I know if he works anytime during the week he has to be paid. If he’s exhausted the time allotted for sick time and vacation time, do we still have to pay him for the additional weeks?

  11. hrlady Says:

    Hi Emily,
    Under the FLSA, exempt employees need not be paid for any workweek during which no work is performed. Also, even once the employee has exhausted his PTO it’s permissible to make salary deductions for full days of work missed due to sickness or disability. Just remember, an exempt employee’s salary cannot be reduced by partial days in this circumstance. HTH!

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