Human Resource Blog

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.