Q: An exempt employee was out for a week. He had eight hours of accrued sick time, which he used before coming in and working two unauthorized hours at the end of the week. Are we required to pay him for the whole week?
A: Generally, under the Fair Labor Standards Act (FLSA), employers may not make deductions from exempt employees’ pay based on time they are absent from work. In fact, you are required to pay an employee for an entire day’s work even if he doesn’t work the full day. However, under limited circumstances, you may make wage deductions for an exempt employee’s absences if (1) the employee misses a full day of work because of sickness or injury, (2) you have a bona fide sick leave policy, and (3) the employee isn’t entitled to paid leave for the absence under your sick leave policy.
It’s important to remember that technology enables many employees to work from home even though they are sick. Consequently, for purposes of the FLSA, employees may be deemed to be performing work even when they aren’t physically in the office. That may be true even if an employee simply sends or responds to work-related e-mails or checks his voice mail. If an exempt employee works from home, he may be entitled to receive compensation for the entire day.
Bottom line. You are not required to compensate an exempt employee if he was out sick for a full day if the employee didn’t perform any work and didn’t have any paid sick leave available under your sick leave policy.
Q: One of our employees had pneumonia but wasn’t hospitalized. She was absent for fewer than three consecutive days. Does her condition qualify her for Family and Medical Leave Act (FMLA) leave?
A: Whether an illness such as pneumonia qualifies as a serious health condition under the FMLA must be analyzed on a case-by-case basis. The FMLA defines “serious health condition” as “an illness, injury, impairment, or physical or mental condition that involves either inpatient care in a hospital, hospice, or residential medical care facility; or continuing treatment by a health care provider.” For pneumonia to qualify as a serious health condition, the employee must be incapacitated for more than three consecutive calendar days and receive either (1) treatment on two or more occasions by a health care provider or (2) treatment by a health care provider on at least one occasion that results in a “regimen of continuing treatment.”
A “regimen of continuing treatment” includes a course of prescription medication (e.g., antibiotics) or therapy. Treatments that can be initiated without a visit to a health care provider, such as using over-the-counter medications, resting in bed, drinking fluids, or getting exercise, are not by themselves considered to be a regimen of continuing treatment for purposes of FMLA leave.
Bottom line. Pneumonia can qualify as a serious health condition under the FMLA depending on the length of the employee’s absence and the type of treatment she received.