Exempt employee's request for unpaid FMLA

DianeZ

Good morning everyone:
I'm double posting this one because it relates to FMLA and also wage and hour. I'll try to make this short, but I need your help. We have an exempt employee who's wife and him had their first baby last Monday. Great! He took off the entire week other than Wednesday, he came in and worked a full day. I assumed that he would cover his time off with vacation time. However, he came in this morning and indicated that he wants to take the time off without pay. He has 72 hours of vacation and two personal days that must be used by the end of 2004. Our policy requires employees to use vacation/personal time for days away from work. However, this is FMLA, and we don't "require" employees to use their vacation time for FMLA. So...my question is, can I give him the time off without pay. I believe I can under FMLA law. But, I'm concerned because he's exempt and my understanding is that I have to pay him for an entire week worked if he works even one hour in that week. Please help me! I need to give him an answer today. Thanking you all in advance.

Don D

Yes, you can. An employee must be allowed to use his vacation if he chooses to, absent your policy requiring it. But, since he does not elect to do that, the law allows you to 'dock' or not pay even exempts for those hours/days when they were/are on FMLA. FMLA overrides FLSA in this regard.

LindaS

FMLA allows you to "dock" an exempt employees pay for time not worked without jeopardizing their exempt status. Also keep in mind that the WIFMLA allows the EE to choose whether or not to use vacation or other paid time for FMLA so until WIFMLA expires, you don't have a choice whether or not to "force" someone to use their paid time off.

DianeZ

Don and Linda:
Thank you so much for your responses. I did allow him to take the time off without pay. Our Wisconsin FMLA is even more liberal then the Federal. Gotta love it!

Jimbo

Diane,

I am not familiar with Wisconsin Law but if you need the FMLA regulatory citation for the docking authority check out 29 Code of Federal Regulations Section 825.206.