We’re having some problems with our sick leave policy. When people get to the end of their sick leave and have to stay out sick, what happens? I guess that if they are nonexempt, they just don’t get paid. But for exempt people, can I give them an unpaid personal day and deduct a day from their pay? Can I make them use vacation days even if they don’t want to (one has a trip planned)? — Walter R., Office Manager in Woodside
Our HR Management & Compliance Report: How To Comply with California and Federal Leave Laws, covers everything you need to know to stay in compliance with both state and federal law in one of the trickiest areas of compliance for even the most experienced HR professional. Learn the rules for pregnancy and parental leaves, medical exams and certifications, intermittent leaves, required notices, and more.
Most HR managers will have to deal with this situation at some point. We sought out Sandra Rappaport’s advice.
You are correct that for nonexempt employees, extended time off for illness after accrued sick pay has been exhausted would simply be time off without pay. In fact, that is generally the case for exempt employees as well. As long as you have a bona fide sick leave plan, policy, or practice, under both state and federal wage and hour law you may in this situation deduct from exempt employees’ salaries for absences in increments of full working days. Such pay deductions will not affect an employee’s exempt status. You cannot, however, deduct from an exempt employee’s salary for an absence of a partial day of work.
In addition, you certainly can offer employees the option to use accrued vacation pay to cover that additional time off. But can you require them to use accrued vacation pay? Just last year, a California court of appeal approved an employer’s vacation leave policy that stated that the employer would deduct from an exempt employee’s vacation leave bank for partial-day absences of four hours or more. The employees argued that requiring exempt employees to use vacation leave for partial-day absences from work rendered all of those employees nonexempt under California law.
The court of appeals disagreed. It reasoned that employers have the right to control the scheduling of employees’ vacation, and also found that an employer’s requiring employees to use their accrued vacation leave when they wanted or needed to be absent from work for four or more hours in a single day neither imposed a forfeiture of vested time nor operated to prevent vacation pay from vesting as it is earned. So, if your policy provides that you will deduct from accrued vacation pay to cover time off in these circumstances, such a practice is permissible, even on a partial-day basis.
Sandra Rappaport is a partner at the San Francisco office of law firm Hanson, Bridgett, Marcus, Vlahos & Rudy.