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Can we deduct personal leave for exempt worker’s partial-day absence?

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in FMLA Guidelines,Human Resources

Q. Some of our supervisors make their exempt employees take personal or sick leave for every minute they miss from work, even if they work a regular schedule the rest of the week. Can we safely do that? — N.N., Florida

A.
As long as you have a “bona fide” sick leave plan providing leave time for absences caused by sickness, it is permissible to require the use of sick leave time to cover such absences.

As you know, the “salary basis” test for exempt employees would prohibit a deduction from salary for a partial-day absence due to personal reasons or sickness. However, the Department of Labor has issued numerous opinion letters stating that requiring the use of leave time to cover a partial-day absence would not violate the salary basis test.

The critical issue is just making sure there are no deductions from salary (as opposed to leave time) for partial-day absences due to personal reasons or sickness. However, as a practical matter, requiring exempt employees to account for their schedule on a minute-by-minute basis doesn’t “smell” like exempt treatment. Thus, if the classification is a “close” call, you may want to reconsider such a policy.

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