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Mar03

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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7 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:

    [...] ยป 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 – http://www.humanresourceblog.com/ [...]

  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

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