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Can we reduce pay for exempt employee who will miss work for intermittent FMLA leave?

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in FMLA Guidelines,Human Resources,Leaders & Managers,Management Training

Q. One of our salaried supervisors has informed us that he needs to take two hours off work each week for the next two months to undergo medical treatment. His physician has certified his illness as a “serious health condition” under the FMLA. May we reduce his pay for the time he will miss work, or are we required to continue to pay his full salary to retain his exempt status under the Fair Labor Standards Act?

A. You may reduce his salary for the time he misses work. The FMLA entitles qualified employees to take up to 12 weeks of unpaid leave in a 12-month period due to a serious health condition. Under certain circumstances (with proper certification from the employee’s physician), FMLA leave may be taken intermittently, in increments of as little as one hour.

While FMLA leave is generally unpaid, an employer may require its employees to substitute other types of leave (such as paid sick leave or vacation time) for the time away from work. Where substitution is not an option, an employer does not have to compensate an employee for time off taken pursuant to the FMLA, even where the leave is taken in hourly increments.

This reduction in salary would appear to violate the Fair Labor Standards Act (FLSA), which requires that exempt employees be paid on a “salary basis.” However, the FMLA regulations specifically state that if an employer maintains the necessary FMLA records, the fact that it provides either paid or unpaid FMLA leave is irrelevant to the determination of whether an employee is exempt under the FLSA.

In your situation, therefore, reducing the supervisor’s salary for the two hours of FMLA leave each week will not affect his exempt status.

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