exempt emp. still getting paid

netpique

We have an exempt salaried employee who has been with us for less than a month working in the state of GA.  He received an injury (non job related) and has been unable to work for over 2 weeks now.  His doctors note, just received today, states he is unable to work indefinately.  He does not qualify for FMLA due to his length of employment and he does not qualify for ADA due to not being able to perform the essential job functions.  Unfortunately, our company which is relatively new does not have short term or long term disability policies yet.  According to the DOL we must pay exempt employees for absences due to sickness or disability but it doesn't say for how long.  I am brand new to this position, less than a week, and walked into this mess.  Any assistance or guidance would be very appreciated.

HRforME

http://www.dol.gov/elaws/esa/flsa/overtime/cr4.htm  Directly from the DOL 

"Deductions from pay are allowed:

• When an employee is absent from work for one or more full days for personal reasons other than sickness or disability;
  
• For absences of one or more full days due to sickness or disability if the deduction is made in accordance with a bona fide plan, policy or practice of providing compensation for salary lost due to illness;
  
• To offset amounts employees receive as jury or witness fees, or for temporary military duty pay;
  
• For penalties imposed in good faith for infractions of safety rules of major significance;
  
• For unpaid disciplinary suspensions of one or more full days imposed in good faith for workplace conduct rule infractions;
  
• In the employee's initial or terminal week of employment if the employee does not work the full week, or
  
• For unpaid leave taken by the employee under the federal Family and Medical Leave Act. "

Once the employee has used up all sick time from the "bonafide plan", you can stop paying any days where the exempt employee does not work at all.  However, if the employer is calling him at home as a resource, that would count as working.

 In all of my reading, a 5-6 day sick plan per year is considered bonafide and the DOL allows for a plan to be bonafide even if there is a period of time in the beginning of employment where an exempt employee is ineligible to participate in the sick plan....

"One permitted deduction is:
...Deductions for such full-day absences also may be made before the employee has qualified under the plan, policy
or practice, and after the employee has exhausted the leave allowance thereunder. . . . .." from http://www.dol.gov/esa/whd/opinion/FLSA/2006/2006_09_14_32_FLSA.pdf

 

 

 

BarbieW

Ok, I think common sense has to prevail here. The person has been there less than a month and out for the last two weeks. It's not workers' compensation and FMLA doesn't come into play. The ADA could require that an employer give a leave of absence as a reasonable accommodation but its not reasonable if the leave is indefinite. In addition, I believe, even if an employee is exempt, if he or she is out for the entire week and not doing any work the employer doesn't have to pay him or her.

I'd take a look at how you've handled things in the past and what your policies say, but I don't think you have to keep paying him. If it were my company with my policies, I'd probably terminate the employee and let him know that if and when he can return to work he can apply for a job, if there is an opening, at that time. At the very least, I'd make sure he was notified that he would no longer be paid for any week in which he isn't able to work.

TXHRGuy

HRforME and Barbie are both right.  Which one applies more to your situation depends on whether or not you have a bona fide sick leave plan.

 

If you do have a bona fide sick leave plan, then you need only apply your attendance policy once sick leave is exhausted.  Sick leave may be exhausted immediately if the employee has none accrued in his short tenure with the company.  If you don't have an attendance policy for exempt employees, then you need to understand the company's past practices.  If past practices or existing policy seem not to fit the situation, my rule of thumb for litigation avoidance is "do not be mean to sick people".  That doesn't mean that non-attendance can go on forever, but be reasonable in your approach.

 

If you do not have a bona fide sick leave plan, then you have to pay a full week's pay for weeks in which the employee has done any work and during which all absences were related to illness but you do not have to pay the employee for weeks in which no work was done for the company.  In this case, your attendance policy still applies.

 

If your attendance policy deals with "excused" and "unexcused" absences, be clear on whether or not the employee's absences are excused for medical reasons and, if they are excused, whether or not this can go on indefinitely or not by your own policies.  Usually there's some clause for managerial discretion and you will need to understand past practices well in order to apply the policy judiciously.

netpique

Fantastic feedback everyone.  Exactly what I was looking for.  Thank you very much.

aharris1

Nice post and correct on both accounts!

 

Angie