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Ask the HR Expert

By SBAM Approved Partner American Society of Employers

Question: We have an exempt employee abusing our sick policy.  They come in for one hour and leave – still getting paid for the day.  What’s the law?

Answer:  When an exempt employee works a partial day (no matter how small the increment) you must pay them for the full day’s work under most circumstances.   Exceptions to this rule can be found here. You can force them to substitute time off to fill for the time not worked, but you cannot dock them for the partial day absence.  If they have no time off left, you still have to pay them for the full day of work. It is recommended management use the power to discipline or discharge to address the absenteeism. The employer can force the employee to use paid time off under its other fringe benefits programs as “compensation” for these short absences. The employee’s penalty is the loss of vacation and other paid time off they may have wanted to use at other times for other circumstance.

If the absence is an FMLA qualifying reason, then the employee should go through the process to have the FMLA leave approved and tracked.  If the employer’s policy requires employees to use paid time off for any FMLA absences, the employee will record the hours worked and fill the remainder of the day with PTO.  If the employee runs out of PTO while on FMLA, then the employer can dock the employee for the partial day absence.

If the absence is FMLA qualifying, the employee should not be disciplined for using approved leave.  If the employer thinks the employee is abusing FMLA time, then the employer can use the FMLA process to have the employee recertify the leave or get a second opinion.  If the absences are for garden variety illnesses (non-FMLA or ADA qualifying) or if the absences become excessive, the employer can require more medical documentation to substantiate the absence.  Excessive absences could eventually lead to discipline/termination.

Effective March 29th, the new Michigan Paid Medical Leave Act (PMLA) went into effect.  Technically the law does not apply to exempt employees unless the employer decided to be generous and include exempt employees in providing the required amount of time off.  The employer should refer back to their policy to ensure no extra protections are being offered to their exempt employees under PMLA.

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