Salaried exempt and FMLA

[Elzabeth3]

What is the name of your state (only U.S. law)? Arizona

I’m an exempt salaried manager that does not accrue sick leave. I recently found out that if I use an intermittent FMLA day to care for my minor son with a chronic health condition my pay will be docked for that day. I am given the option to use vacation time to get paid. I was also told that if another exempt salaried manager was covered under FMLA for their own condition and not their child’s that they would get paid their usual salary for using an FMLA day and would not need to use vacation time. Can they pay one and not the other?

[pattytx]

There are really two issues here. And a combination of the two.

One, can a salaried exempt employee's salary be docked for intermittent FMLA leave? The answer is yes. (b)(7) in the link below

Second, can there by a difference in pay policy for one employee taking "sick" time for themselves vs taking "sick" time for a family member? The answer there is also yes. Because the employer does not offer a sick pay replacement plan, the salaried exempt employee's salary cannot be docked for absences of less than a full workweek for the employee's illness or injury; there is no similar provision for the employee's children's illness or injury (b)(2) in this same regulation:
[url]http://www.dol.gov/dol/allcfr/ESA/Title_29/Part_541/29CFR541.602.htm[/url]


Now comes the combination part and this is where the exceptions may contradict each other, as you can probably see. The real question is, which exception overrides the other?

My educated guess is that the FMLA exception would be primary, even with no sick pay program. But, I have never worked with or even heard of a company which was big enough to be subject to FMLA, but did not offer a sick pay replacement plan (or PTO, where vacation and sick are combined) for exempt employees.

Having said that, there is no law saying that the employer cannot pay anyway (using vacation or other paid time off available) and I am not aware of any provision in either the FLSA or the FMLA which would see this as discrimination, since being a parent is not a protected class.

Unless another responder with more experience in FMLA than I have has another idea, I would try to contact the US Dept of Labor, which regulates both the FLSA and the FMLA, and ask the question as to which exception is applicable in this case.

[Elzabeth3]

Well that is confusing also. Even though we don't have a sick leave policy for salaried managers we can still call in sick and get paid as normal. I'm also told that I can call in sick to take care of my son and get paid as normal. The only time I don't get paid is if I use FMLA...? This is a very large company with locations around the world.Yet I have never seen a written policy for sick leave for their salaried employees. Hourly employees have a written policy in place.

[cbg]

It is legal for you to be docked pay when you use FMLA. Even if you are salaried exempt.

And since you are getting paid if you call in sick, there's no issue with there not being a formal sick leave policy.

Nothing you have posted suggests that the employer is doing anything illegal.