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Medical Information

Is it true that medical informaiton must be kept in a separate file from the employees HR file? We are moving to a paperless system soon and I am not sure how this will affect a paperless environment if in fact this is accurate.

Yes, employee medical information, including requests for FMLA leave or ADA accommodations, must be kept confidential and maintained separately from the employee’s personnel file. In a paperless system where records are kept electronically, one way to accomplish this would be to use separate databases, each of which can only be accessed by the appropriate personnel.


negative leave balance

Our company is headquartered in PA with offices in VA. Our current policy allows employees to borrow leave up to a maximum of 40 hours. Is it legal in PA or VA to deduct negative balance from final paycheck. If we decide to change policy and not allow employees to borrow leave in the future, can we deduct negative balances from employees in a regular paycheck to start off the new coming year with a clean slate. Thank you.

First, be aware that even under federal FLSA requirements, recovering negative leave balances from the final paycheck can be problematic, particularly when dealing with exempt employees.

For exempt employees, the FLSA does permit deductions for full day absences due to personal reasons. However, because you are not permitted to deduct for partial-day absences, your recordkeeping must be detailed enough to show that each of the absences were for full days. Many employers do not keep detailed records of exempt employee working hours since this is not required by the FLSA. Additionally, you would need to ensure that any deductions do not bring the exempt employee’s salary below the $455 weekly salary threshold.

For both exempt and nonexempt employees, what you are essentially dealing with is a loan, as you have paid in advance for time that has not yet been worked (or leave time that has not yet been earned). Pennsylvania DOL regulations do permit deductions for repayment of bona fide loans, as long as the employee authorized the deduction in writing at the time of the loan or subsequent to the loan. Virginia does not specifically address wage deductions for loan repayment, but stipulates that no deductions can be made without the employee’s written consent.

While it is theoretically possible to legally deduct a negative leave balance from an employee’s check, it is not advised.  A better solution may be to instead deduct the negative balance from subsequently earned leave time, rather than deducting money from the paycheck. And going forward, if you decide to continue allowing employees to borrow against future leave time, you may at least want to limit the borrowed leave to an amount that can be earned back within a short period of time.

Whichever option you choose, you will need to make sure employees are notified in advance of how the negative leave time will be repaid.


Pregnancy Leave

If a pregnant employee who works for a non-FMLA company (less than 50 employees)is being required by their doctor to take an early leave due to complications (two months before due date) plus already indicating she can return to work 6 weeks after delivery, is she protected by any law to expect her job to be available after the birth of her child OR anytime from the time she leaves?

If you are in one of the states that offers a more generous family leave entitlement than the federal FMLA, then you need to comply with the regulations in that state. For example, Vermont’s state Parental Leave Law also allows up to 12 weeks of leave, but unlike the FMLA it applies to all employers with 10 or more employees.

Even if you are not subject to the FMLA or a state regulated family leave law, you may still need to comply with the federal Pregnancy Discrimination Act (PDA). This law applies to employers with 15 or more employees and prohibits discrimination based on pregnancy. If you are covered under this law, you are required to treat pregnant employees the same as you would treat any other temporarily disabled employee.

The PDA does not require any specific amount of leave, but if you provide disability leave for employees who have other temporary disabilities, then you must provide the same for pregnant women. The amount of time, if any, provided is up to the employer, but must not be any less for pregnant women than it is for other temporary disabilities.


Terminating because of physical limitations.

Can I terminate an employee who is unable to use her hand without them swelling? Employee is required to perform a repetitious movement all day. She keeps going to the doctor where they give her an excuse for the day. She has ask to move to another dept. I don’t have another dept. where not using her hands are an option.

If this employee’s job requires repetitive motion, it is very likely that her physical condition is caused by, or at the very least exacerbated by, the job. If this is the case, you are dealing with a work-related injury, which may or may not be OSHA-recordable, and you will need to treat it as you would any other work-related injury or illness. If, as I suspect, the employee’s injury qualifies as a workers’ compensation claim, your first order of business should be to ensure that the employee receives proper medical care. The physician can then help you determine how to proceed including whether or not the employee needs to be taken out of work for a period of time, whether or not she can continue on her present job, if she needs to be placed on restricted duty, etc.

Whatever you do, it is advised that you do not even think about terminating this employee until you determine whether or not this is a work-related injury, as it is illegal to retaliate against an employee for exercising their rights under workers’ compensation law.


Holiday Time for a 9/80 Employee

We have an exempt salary employee in Alabama that works a 9/80 schedule and they are asking if they will receive holiday hours for an unpaid holiday that falls on their scheduled off day. I am saying no because it is and unpaid holiday and because they would have been off on this day regardless but mainly because it is and unpaid day.

Neither federal nor Alabama state law requires that employers pay additional pay for holidays. Employers who do choose to pay holiday pay are free to establish their own procedures regarding which holidays will be recognized, how they will be paid, and any stipulations such as required length of service, requirement to work the day before and day after a holiday, etc.

Exempt employees receive their normal salary for weeks in which a holiday falls, as long as they perform some work during the work week. Many employers do allow exempt employees to take an additional day off if a recognized holiday falls on a day the employee is normally scheduled off, but this is determined by the employer’s policy.

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