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Sep15

Docking exempt pay for intermittent leave under the ADA

Because we are a small company and do not have 50 employees within a 75 mile radius, we do not have to follow the FMLA guidelines. However, we do have an exempt employee who would fall under intermittent leave as a reasonable accommodation under the ADA. I see that an exempt employees pay can be docked under the FMLA, but can we still dock the employee’s pay for the hours they they do not work under the ADA?

First off, kudos to you for knowing that a leave of absence can be a reasonable accommodation under the ADA. This is often not considered, especially with smaller businesses.

Exempt employees must receive their full predetermined salary without regard to the quantity or quality of work performed. Deductions from an exempt employee’s salary are permissible only 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 and the employee has exhausted such paid leave;
• 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 (as you mention).

Thus, it’s not permissible to deduct from an exempt employee’s salary for intermittent leave as an accommodation under the ADA.

Keep in mind, under the ADA, an employee may be permitted to use his own accrued paid vacation or sick leave, as needed. Further, the Equal Employment Opportunity Commission (EEOC) recommends an employee with a disability be permitted to exhaust accrued paid leave before using unpaid leave as an accommodation. Requiring an exempt employee to use accrued paid time off in just about any increment is permissible under the FLSA. HTH.

This entry was posted on Tuesday, September 15th, 2015 at 7:53 pm and is filed under
Benefits, Compensation, Labor Laws.
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