I have a new (two-months-employed) salaried exempt employee that has been taking between three and six hours a week to go to doctor’s appointments. He says that this will not continue forever and should soon stabilize to a monthly appointment. He has expressed to me multiple times in writing that he does not expect to be paid for the hours that he is taking off. Can you shed some light on any laws that I should know about for salaried employees and taking time off?
Stumped About Sick Time
Dear Stumped About Sick Time,
First of all, your new employee sounds incredibly thoughtful. He recognized that his medical appointments impact the business and volunteered to forgo pay.
Second, you have to turn down his generous offer.
Being paid on a salary basis means he receives a predetermined amount of compensation that must stay the same every pay period, according to the Fair Labor Standards Act. This is true regardless of how many days or hours he puts in, as long as he has completed some work, with very few exceptions. You can dock his paid time off (PTO) for the missed time, but you can’t dock his pay.
You can only dock an exempt employee’s pay for absences in strict circumstances—for instance, if these absences were covered by the Family Medical Leave Act (FMLA), which guarantees certain employees of companies with 50 or more workers up to 12 weeks of unpaid leave each year (with no threat of job loss) to care for a new child or seriously ill family member, or to recover from an illness themselves. In this case, however, because he’s a new employee, he does not qualify for FMLA, which requires individuals to have been employed for at least 12 months and have worked at least 1,250 hours over that time.
Other exceptions would include if he takes a full day off work for something other than illness or if he’s exhausted all his PTO and needs a full day off for medical reasons. But neither of those applies here.
If you have 15 or more employees, you’re subject to the Americans With Disabilities Act. Unlike FMLA, which requires an employee to have worked for a set period of time to access coverage, there’s no eligibility period for this protection. The ADA requires that you make a reasonable accommodation for any qualified employee. I’d assume that his condition qualifies (though that’s just a guess, since I don’t know the specifics), but you should ask him to fill out paperwork regardless. In most jobs, taking three to six hours off per week for a relatively short period would be seen as a reasonable accommodation.
You could, of course, require him to make up the time, which he may be anxious to do anyway. But here’s what I would do if I were you. I’d have him fill out the ADA paperwork and agree to this accommodation based on the doctor’s timeline (since he’s indicated this a temporary situation). Then I’d help him in any way that you can.
Why? Because not only is this good for the employee, it’s also good for your whole office. Workers now know that if they get sick, you’re going to back them up and give them the support they need. Turnover is insanely expensive—in fact, it costs employers 33% of a worker's annual salary to hire a replacement if they leave—so giving someone flexibility when they need it saves you a fortune in the long run.
A company that supports people through medical problems is the type of place people like to stay. When you allow exempt employees to truly take care of themselves, that will come back to you through improved performance at work. As long as this guy isn’t an entitled jerk (and since he volunteered to take the time unpaid, I’m guessing he’s not), he’ll appreciate the kindness you showed to him. And that’s worth whatever sacrifices you have to make in the short run.
Suzanne Lucas, Evil HR Lady
Image: Creative Commons
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