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Sep10

Limited duty medical return for exempt employee

We have an exempt employee returning from sick leave after having knee surgery and the doctor has put her on limited duty. This employee has asked to work from home, due to the limited duty status. Our company has a plan for “sick leave”. How are we required to pay this employee?

For example. Monday she works 2 hours and the rests for the other 6 in bed., Tuesday she works the full 8 hours, and Wednesday – Friday is is not working at all but is doing phsyical thearpy.

I am concerned because of her exempt status and I dont know if we can “charge” 2 hours worked and 6 hours for sick pay for the Monday for instance.

Please advise.

Thanks,
Jennifer

You are right to be concerned about this issue. You probably should not permit this employee to work from home unless she is on FMLA, or unless you already have a valid system in place that permits exempt employees to work from home.

You are not obligated to grant this employees wish for limited duty, since she does not have a permanent disability. Within certain limits, you can require that she remain on leave until she is able to complete her usual duties on site. Or, you can require that she remain on leave until she is able to fulfil the duties of another position that you have open, like file clerk. There is no law that requires you to invent a job that will meet this employees physical limitations, if none exists.

You need not be concerned about charging the employee for 6 hours of sick leave on a day when she works 2 hours. This is permissible in almost every jurisdication (with the possible exception of California.) The federal FLSA simply states that the exempt employee is entitled to payment for the entire day, when she works any portion of it. The FLSA does not specify how the employer will tabulate that time — it merely addresses the amount on the employees paycheck.

Ideally, the employee would be taking intermittent FMLA so that when she works for 2 hours, she is on FMLA for 6 hours that day. Paid sick leave can be used concurrently with FMLA, and you should require that it is. FMLA applies to an employer with 50 or more workers within 75 miles.

If your company is too small to be covered by FMLA or ADA, and your state has no family leave law, you may want to rethink this situation. The problem will arise once the employee uses all available sick leave. If she does no work whatsoever one day, she need not be paid for that day. However, if she works even 5 minutes or less during the day, she must be paid her entire salary for the day (unless she is on FMLA or taking unpaid time under ADA.)

In your example above, suppose the employee has used up all her sick leave. She works 2 hours on Monday and checks her email for 5 minutes each day on Tuesday through Friday. The exempt employee would be entitled to her entire salary for the week, because she worked 5 days that week — even though she worked only 2 hours and 20 minutes that week.

You may believe that the employee has enough sick leave to cover her entire absence, but often recovery takes longer than expected or there are complications, so you need to assume that this employee will use up all her sick leave and still require time off.

A better option might be to agree to allow the employee to work part-time on an hourly basis from home while she recovers. She would be entitled only to payment for the hours worked, plus available sick leave up to 8 hours per day. She could legitimately return to a full-time exempt position when she is recovered. This is a much better accommodation for light duty. But again, if you do not have a need for such an employee, you do not have to jump through hoops to accommodate the light duty request. (Usually limited duty means the employee can accomplish most of her job duties onsite, but may have a restriction such as not being able to lift more than 20 lbs. This does not even sound like a limited duty request — it sounds like the employee wants to be paid for staying home without working.)

Also be aware that you are setting a precedent, and you will have to provide the same benefits to any other employee on medical leave in the future. It sounds like you are providing the following benefits: working from home, flexible schedule, continued benefits including group health insurance, and return to job after leave. By law, you would be required to offer the same benefits to any employee in the future, including an employee who is unable to work due to pregnancy complications, who has no sick leave available.

For a more specific answer, post another question that mentions your state and the size of your company.

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This entry was posted on Friday, September 10th, 2010 at 8:51 am and is filed under
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