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Salaried Employee Taking Excess Sick Leave-do We Have To Pay?

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yjkaries

Guest
What is the name of your state? NJ

In our handbook it states that as a benefit, we accrued 3 sick days in a cal. year. We have an employee, salaried, who has taken extra days. Our handbook states nothing about "if you take more than the allotted days you will not be paid for these days". I am HR director for my company (small company, 25 people) and this is the first time I am confronted with this. Management says not to pay him for these days and since he himself has not called but his girlfriend has called. One thing our handbook does state is that he must bring doctor's note for any absence over 3 days or more in order to work.

So, if he brings in a doctor's note do we have to pay him for the excess days? He is not hospitalized BTW. And he seems to do this every year and in the past it was overlooked. New VP has docked one other employee for overages which he understood. This employee can be problomatic so I need to know if legally there could be anything that can bite us back in the butt.

Also, We really don't know the true extent of his illness other than "feeling sick". Rumor has it that he has an alcohol dependancy but we have not seen this at work.

Please advise ASAP since I have payroll on Monday and must know. Thank you in advance...your forums are wonderful!
 


Beth3

Senior Member
The FLSA states that an employer may deduct a full day's pay if an exempt employee is absent due to illness in full day increments only after the employee has exhausted a "reasonable" paid sick days benefit the employer provides. Naturally, the FLSA doesn't define what constitutes reasonable but a comp expert told me some years ago that said benefit should be a minimum of five days of paid sick time per year. In my opinion, a three day benefit doesn't meet the sniff test as to the intent of the law and if the employee files a complaint, you'll very likely lose.

If I were you, I'd either give the State or federal DOL a call and ask about the recommended guideline on this or consult with an employment law attorney before proceeding.

Personally, I don't put any stock in doctor's notes for absences like this. They're a dime a dozen. Unless absences fall under the FMLA, doctor's notes can be disregarded. Deal with this employee's attendance and pay issues separately.
 
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yjkaries

Guest
I am trying to avoid calling my attorney since he takes days to answer us (unfortunately).

I have spent the last three hours going over every law, both Federal and State, trying to distinguish if we must pay him for these days. He has taken almost 3X the amount of days we are allowed to take as in the handbook which he signed and initialed. There is unfortunately no disciplinary statement in the handbook --- which is unbelievable ---- But as the NJ State and Federal DOL sites mostly speak about FMLA and ADA acts..which he does not fall in either category --- I am under the impression that we do not have to pay him these excesses with or without a doctors note. If he does continue to be out for the rest of the week than he would be subject to short-term disability IF he is legit sick.
 

Beth3

Senior Member
1. Find a new attorney. It's not acceptible for your legal counsel to take days to return your phone calls. You might want to consider a bigger law firm next time too. I have a primary employment law counsel (one of the senior partners) but if she's not available or it's not an issue worth her time (or billing rate), there are a half-dozen other attorneys in the employment law area of the firm I can call instead. Either way, I'm guaranteed an answer within an hour.

2. Contact the federal DOL and ask about their recommended guidelines as to what constitutes a "reasonble" paid sick days benefit for exempt employees. 202-693-4650

If your employee has taken 3 times the amount of time the handbook allows (which I take means at approximately 9 days or more) and it's all been paid, then I suspect there would be no violation to dock his pay for a day for any full days he's absent due to illness for the remainder of the year.

Also, just because there is no disciplinary process outlined in the handbook doesn't mean you can't take disciplinary action. It would be good to have but common sense/management's best judgment is a legitimate basis on which to proceed.
 
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yjkaries

Guest
Thank you for your response. These last 3 days constitute him taking 9 sick days...we paid him for 6 but they will not pay for the rest. As for why we paid him for the 3 additional days... Management prior to August was much more lasidasical when it came to enforcing things....things are different now.

Re: Legal Firm.... this firm is small but the lawyer and the owner are fishing buddies...need i say more.
 

Beth3

Senior Member
Legal Firm.... this firm is small but the lawyer and the owner are fishing buddies...need i say more. Ah. The buddy of the CEO you're stuck doing business with, whether a lawyer, an insurance broker, a consultant, or whatever. Been there, done that. :D
 

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