FMLA - salaried

MarilynR

I have a situation and am not completely sure how to handle it. I have a salaried employee who was injured on the job. This injury was through his own neglect but was turned into Workman's Comp. He has been undergoing treatments for his injury, and has more than exhaused the paid sick days allowed. We have just been notified that he will most probably have to continue treatments. His manager does not want to pay him for missed work time. I explained that since this man was salaried, we have to pay him for the two hours twice a week (minimum) that he will miss. This is right, right? I suggested that this employee use vacation time, but he might not agree to this. Would this man fall under FMLA?

WO

Technically, you could have placed him on FMLA as soon as you had notice of his "serious health condition" (dependent upon your policy), so I would immediately place him on FMLA now. The FMLA allows you to track and reduce the hours of a FLSA exempt employee without jeopardy of losing the exemption, therefore you may pay him for only the time, if any, that he works.

Theresa Gegen TX

He may be eligible for intermittant FMLA leave. You need to check that out. I would be cautious about reducing his pay for a few hours missed. Since you are not paying him hourly, a few hours missed should not matter. Also, you probably don't deduct pay for other salaried people who miss a few hours for a doctors appointment (etc) once in a while. So if this employee is treated differently, I could see him claiming that you are retaliating against him for filing a worker's comp. claim. Also, I am not sure that the FMLA trumps the Fair Labor Standards Act that regulates exemptions and overtime. Without a specific exception in the FMLA, I think that an employer would have to comply with both. It would probably take some legal research to sort this out. The benefit of putting him on intermittant FMLA is that he will "burn off" his 12 weeks. Also, if he can't get all his work done because of the medical appointments, you could consider modifying his work hours (he could start earlier, or work later) if needed.

Before doing anything, though, I would sit down with an employment lawyer to go over the pros and cons.

Good Luck!

Douglas Neu RI

The United States Department of Labor has issued a regulation on the interplay of FMLA and FLSA in situations in which a salaried, exempt employee takes intermittent FMLA leave. Generally, the US DOL's regulation allows an employer to deduct from an exempt employee's salary on an a hourly basis without destroying the emloyee's exempt status if the leave qualifies as intermittent FMLA leave. The regulation in question is 29 C.F.R. Section 825.206, which can be found through the [url]www.hrhero.com[/url] or the US DOL's web site, [url]www.dol.gov[/url]. Generally, though, you should be very careful in deducting from an exempt employee's salary, and should seek legal advice before you do so to avoid destroying the employee's exempt status under FLSA.

Theresa Gegen TX

Thanks Doug! That's great information. I learn something new everytime I come to this message board.