Exempt Employee - sick time

I have an exempt employee who has returned to work full-time again after FMLA. He is back working his normal work schedule, but has exhausted all his accrued vac, sick and personal time. He was out sick one day last week due to sickness. He will accrue his monthly 4 hours of sick time for September and so 4 hours of his hours missed could be applied as sick leave. In this situation, can I deduct his pay for the other 4 hours?


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  • Hi Tracey:
    The first thing you should consider is whether the sick day last week falls under the original reason for FMLA leave (i.e., the serious health condition for which the employee was certified) and whether he is entitled to additional leave on an intermittent basis. If so, you could just designate the day last week as FMLA leave. If he qualifies for 4 hours of sick leave, 4 hours would be paid and 4 hours would not.

    If he has already exhausted his 12 weeks of FMLA or if the illness last week is unrelated to the FMLA condition, then your are right to think about his exempt status and any deductions. FLSA says that deductions may be made for absences of a [B]full day [/B]or more occasioned by sickness or disability if the deduction is made under a bona fide plan, policy, or practice of providing compensation for loss of salary caused by both sickness and disability (i.e., your sick leave policy). The law says that if the employee has no sick leave, the employer may not deduct from an employee's pay for less than a day's absence for sickness or disability. If the employee works for any part of a day, though, and is out sick the remainder of the day, the employer may not deduct from the employee's paycheck. On the other hand, employers may deduct from an employee's allotted sick time under the company's leave plan in increments of less than a day as long as the employee has not used up his or her paid sick time.

    The law only addresses when the employee has already used up his sick time, not when he uses it up halfway through the day. Under the circumstances, you should probably check with the state DOL to confirm.
  • Susan - Thank you for your advise. You gave me the information I needed to make a sound decision regarding this matter.
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