exempt pay

gab

I have an employee who is pregnant about 6 months and the location is sanding and repainting the inside. However, she is not suppose to be exposed to the fumes. I want to know that if she has to take a full day off because of the painting and being exposed to the fumes, do we have to pay her for that day or does she need to use a vacation or sick day. I think we have to pay her for that day, but wanted to make sure.

Thanks!

Hatchetman

[font size="1" color="#FF0000"]LAST EDITED ON 10-27-03 AT 10:14AM (CST)[/font][p]Is this an ongoing sporadic problem or was it just for one day?

Is this emplyee really exempt?

If she is unable to perform the essential duties of her job because of her pregnancy which causes a serious health condition, why don't you consider intermittent FMLA, since you indicate that she may need to be off occasionally a day at a time ("I want to know that if she has to take a full day off because of the painting and being exposed to the fumes..."). Do you have a doctor's statement indicating that she is unable to work in the environment of her regular job because of the paint and fumes?

gab

The problem just depends on how long it takes them to finish the painting of the inside. It might take a few days. I don't have a doctor's note because it just happened this morning and I told her that she would need to get a note from her doctor. Basically she wants to know does she get paid for the day or does she have to use vacation or a sick day, if she were to take tomorrow off.

Hatchetman

Interesting problem.

Iunderstand the issue to be that the emplyee is exempt, but works in an area which is currently undergoing sanding and painting of the office area (I misunderstood and though that she worked in some type of assembly area of a furniture manufacturer). She is pregant and her medical condition is exacerbated by the work that sanding and painting to the extent that she is unable to do her job. So, she needs to be off.

Normally, since she is unable to work due to sanding and painting affecting her physical condition, I would say she needs to claim illness and take the day off and use her PTO.

The reason I think it is an interesting problem is the following: Since she is exempt and the company is having the facilitiy sanded and painted, is the absence occasioned by the emplyer's actions -- a provision of FLSA regulations regarding "salaried, exempts" states, "An employee will not be considered to be 'on a salary basis' if deductions from his predetermined compensation are made for absences occasioned by the employer or by the operating requirements of the business." -- 29CFR541.118(a)(1)

The question becomes is the emplyee unable to work because of the operating requirements of the company at that point, or her physical condition? I have no answer.

Um....is there place you can have here work somewhere else for the day in the office building. If this is a one time problem, consider the employee relations issue, and go ahead and pay her for the day and have her work at home.

santire

Hatchetman, as always, makes some excellent points. If she is exempt and she must miss work for a day or two because of the action of the employer, she must be paid for that day even if it is a paid vacation day. One point that needs to be considered in this matter is OSHA. Sounds like requiring her to work under such a condition could be exposing her to an unsafe workplace.