Sick Leave for Exempt Employees – A Reminder

Generally, to be exempt, an employee must have certain duties and be paid on a salary basis. Typically, if the exempt employee performs any work during the workweek, he or she must be paid the full salary amount.   What if the employee calls in sick 2 out of 5 days of the week? Can an employer make a deduction from the employee’s salary for those missed days? The legal answer yes – if the deduction is made in accordance with a bone fide plan, policy or practice of providing wage replacement benefits for the sick days. In practice, the employee is still going to be paid – they are just going to be compensated via paid sick leave or paid time off which replaces their salary for the sick days. The employer can reduce the employee’s available sick leave or paid time off by the 2 days the employee is absent, but the employee must still be paid their full weekly compensation. Two exceptions to this rule are where an employee: (i) is not yet eligible to participate in the sick leave plan; (ii) has used up all of their available paid sick leave or paid time off.  More information about sick and disability leave for exempt employees can be found here: http://www.dol.gov/elaws/esa/flsa/overtime/cr9.htm

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