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Can we deduct pay from an exempt worker who takes FMLA leave? If so, how should we calculate it?

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in FMLA Guidelines,Human Resources

Q. An exempt employee recently requested intermittent leave under the FMLA. The employee will be out of the office approximately 12 hours each week to obtain treatment for a serious health condition. FMLA leave at our company is unpaid. Can we deduct from the employee’s salary for absences of less than a day and still classify her as exempt? If so, how do we calculate how much FMLA time the employee is using?

A. If an employee is otherwise exempt under the Fair Labor Standards Act (FLSA), providing unpaid FMLA leave will not cause her to lose her FLSA exempt status. That means you may deduct from an employee’s salary for hours taken as intermittent leave without affecting exempt status.

How do you calculate the amount of leave taken? An employee is entitled to 12 weeks of leave. It’s not legal for an employer to reduce the total amount of leave just because it is taken intermittently.

Therefore, if the employee normally works 50 hours in a given week, and the employee misses 12 hours during the week for FMLA reasons, the employee has used 12/50 of a week or 0.24 weeks. As another example, if the employee normally works 45 hours per week, but misses nine hours in a given week for FMLA reasons, the employee has used 9/45 of a week or 0.2 weeks.

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