Pay for Sick Exempt Employee
yakley
62 Posts
Case 1: Public employer; Exempt employee on maternity leave; FML activated; our policy is to use all available sick leave - use of vacation, personal is optional. Pays for own short-term disability.
Employee uses all sick leave and has 4 weeks unpaid leave. (received STD benefits). Is she entitled to her salaried wages for the unpaid portion?
Case 2: Executive on medical leave - FML activated; she has no STD policy and does not receive any pay. Is she entitled to salaried wages after she uses her available sick leave?
Employee uses all sick leave and has 4 weeks unpaid leave. (received STD benefits). Is she entitled to her salaried wages for the unpaid portion?
Case 2: Executive on medical leave - FML activated; she has no STD policy and does not receive any pay. Is she entitled to salaried wages after she uses her available sick leave?
Comments
"Case 1: Public employer; Exempt employee on maternity leave; FML activated; our policy is to use all available sick leave - use of >vacation, personal is optional. Pays for own short-term disability. Employee uses all sick leave and has 4 weeks unpaid leave. (received STD benefits). Is she entitled to her salaried wages for the unpaid portion?"
Regarding Case 1 - I assume that the employee is on full FMLA -- not partial days' absences under a reduced FMLA leave. And by maternity leve you mean the time period after the birth of the baby -- now commonly called "baby-bonding" or do you mean actual pregnancy-disability leave? (It's not that important but it may help may things clearer). If the employee has exhausted those benefits or accrued sick leave time, the docking may STILL occur while she is absent for a full day due to illness or injury. I'm not sure what you mean by "pays for own short-term disability" -- She has her own perosnal STD that isn't issued by the employer? And the term, "the unpaid portion" -- I assume you mean the 4 weeks at the end. From the general thrust of your question, the answer seems to be "no."
Let's start from the basics...
Under FLSA, an exempt employee is entitled to full pay for the entire week in which she works any part of the week unless there is an absence for a full day or more (in full day increments) due to illness or injury and the employer has a paid sick plan or policy of benefits or paid accrued time from which the employee would receive compensation for those absences.
In those cases the employee may have any full days' absences due to illness or injury docked from her regular salary for the week (draw a distinciton between the regular salary based upon work and accrued paid sick leave time). If the employee has exhausted those benefits or accrued sick leave item, the docking may STILL occur while she is absent for each full day due to illness or injury.
If the employee is absent for a full day due to personal reasons (not illness or injury), then the salary may be docked for that day, even if there is no "paid personal time off."
The fact that the employee exhausted sick leave benefits or paid sick leave time, doesn't negate the ability of the employer to dock the day's salary. FLSA clearly states that exhaustion of paid sick leave benefits or paid accrued time doesn't prohibit the docking.
If the exempt employee is on intermittent or reduced FMLA leave due to what you identify as maternity leave (which to me could be either pregnancy or baby-bonding), under FMLA, the employer may dock partial days' absences for hours actually missed during the day due to that leave without jeopardinzing the exempt status.
Now having said all that, comes the other part of the equation regarding the exempt employee's salary in which the employee may be absent during the week. Under FMLA, the exempt employee need not be paid the weekly salary for any week in which she performed NO work at all. Thus, while she was on full leave during those last four weeks, she would not be entitled to her weekly salary.
That it is a public sector employer would only matter if the employee was NOT on "FMLA intermittent/reduced leave" and was absent for part of the day due to illness, injury or personal reasons (such as baby-bonding) AND had exhausted paid leave benefits, or had taken unpaid leave, or had been denied benefits. In that case, FLSA provides permits the docking of partial days' absences for those reasons without affecting the exempt status. But that is only for public sector employers who have such a policy, plan or practice or it is partiuclar established in controlling statute, ordinance or regulation affecting the public jurisdiction.
"Case 2: Executive on medical leave - FML activated; she has no STD policy and does not receive any pay. Is she entitled to salaried wages after she uses her available sick leave? "
Here, I assume the executive is only receiving accrued paid sick leave time during FMLA leave and then that gets exhausted. The answer is the same, "no" from the general thrust of your question.
Like in Case 1, the executive's weekly salary would be docked for the full days' or partial days' missed due to the medical leave since FMLA is involved. The fact, as I noted above, that the leave time eventually is exhausted doesn't negate the ability of any employer to dock the salary under 541.118(a) or the public employer under 541.5(d).
If you want references...take a look at the Code of Federal Regulations, volume 29, Sections 541.5(d) and 541.118(a) for relevant FLSA provisions at
[url]http://www.access.gpo.gov/nara/cfr/waisidx_98/29cfr541_98.html[/url]
and for relevant FMLA provision 825.206 at [url]http://www.access.gpo.gov/nara/cfr/waisidx_98/29cfr825_98.html[/url] .