It’s fairly common that
employees will use up sick leave but still have to stay out sick. If the
employee is nonexempt, we just don’t pay the person. But what are our options
for exempt employees? Can we give them an unpaid personal day and deduct a day
from their pay? Can I require them to use vacation days for those extra sick
days?
– John F. in Los Angeles
The HR Management & Compliance Report: How To Comply with California Wage & Hour Law, explains everything you need to know to stay in compliance with the state’s complex and ever-changing rules, laws, and regulations in this area. Coverage on bonuses, meal and rest breaks, overtime, alternative workweeks, final paychecks, and more.
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, too. 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 without affecting their exempt status. You cannot, however, deduct
from an exempt employee’s salary for a partial day’s absence from work.
You certainly can also
offer exempt 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 appeals 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 exempt employees
argued that requiring them to use vacation leave for partial-day absences from
work rendered all of them nonexempt under
The court of appeals
disagreed. It reasoned that employers have the right to control the scheduling of employees’ vacation. The court
also found that 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, a policy of deducting from
accrued vacation pay to cover time off in these circumstances is permissible,
even on a partial-day basis.