Intermittent FMLA for Exempt Employees

by Evil HR Lady on February 15, 2021

Can an employer force an exempt employee to use PTO or dock their pay for time to attend physical therapy appointments (2-3 per week) due to an approved FMLA event?  In this case, the remote employee is attending therapy before normal “scheduled” work hours but, she has to start late. 

HR advised she must take PTO or be docked pay even though she makes up all time daily.  And, this employee normally works well over forty hours every week (easily documented). 

As a manager, I am concerned this is breaching the employee’s exempt status and sets a precedent for all of our other professional, exempt employees (Claims Adjusters).

I have not been able to find any information on-point with docking pay when the employee is making up time.  I would appreciate any input you can provide as this practice seems to violate the FLSA.

First, a blunt statement. Your HR sucks and I’m sorry.

Second, an explanation of what is going on. FMLA is unpaid. Even for exempt employees. It’s one of the few times you can dock an exempt employee’s pay for missing partial days. (In fact, I think it may be the only time you can dock an employee’s pay for missing partial days, but I’d be happy to hear about any other situations where that is possible.)

As such, your HR is acting “correctly” in either docking her pay or her PTO for the time she misses due to her intermitten FMLA.

The whole point of exempt employees is there isn’t a set number of hours that the employee needs to work every week. But, you can require an exempt employee to be working at certain hours. Saying you have to be to work at 8:30 does not violate the exemption. (For a clear answer, think of a Dentist. Dentists are clearly exempt employees in every sense of the word, but they need to be on time to work because the patients expect them to be! You can’t fill someone’s teeth via Zoom.)

So, there is some reasonableness in saying, “The workday starts at 8:30 but on Tuesdays and Thursdays, you are not there until 10:00 so we will deduct 3 hours of PTO per week.”

But, as I said, your HR sucks here. Three hours a week (or whatever it is) is a drop in the bucket with an exempt employee who regularly works more than 40 hours a week. If she were leaving at noon three times a week and not making any of it up, then I’d be on team HR. But that doesn’t appear to be the case. If she were a dentist who had to see fewer patients because of this, then that would be reasonable. But she’s not.

So, here’s what I’d do. First, I’d tell HR that you, as her manager, are changing her schedule. She now begins work at 10:00 on Tuesdays and Thursdays (or every day, whichever works best for you.) Therefore, there is no need to dock her pay or her PTO or anything like that. She is on time to work every day. Sure, sometimes she comes to work early, but she’s an awesome employee.

Escalate this if necessary. Get your boss on board.

Intermittent FMLA can be difficult to manage, but in this scenario, it’s HR that’s being difficult. The employee has done everything in her power to keep her work intatct and be a benefit to the company.

Anyone else have suggestions on how to handle this?

Previous post:

Next post: