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?

{ 9 comments… read them below or add one }

Kathy February 15, 2021 at 5:59 pm

If the worker is exempt, getting all the work done, and “making up time” daily, as if they were non-exempt, doesn’t that satisfy the requirement of a full work week for an exempt employee without any considerations of FMLA?

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MariaRose February 15, 2021 at 10:35 pm

I have a question for the author of this article, what if that specific employee, who is doing that theraphy that is affecting their scheduled arrival time, doesn’t want to stay later in the day to complete the job? I am referring to exempt employees, who “claim” that they are getting their job done but limit their actual time in situ (I am assuming that the reason that this question was brought up, was because the exempt employee was not working a certain amount of hours, using the non-exempt clause). This kind of problem comes up when the employee assumes that they don’t have to work past a certain time of the day, with no weekend work time, and constantly needs time for FLMA reasons during Monday-Friday, in other words, they want full salary paycheck without having to work the hours.

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Just My 2 Cents February 16, 2021 at 2:34 pm

When an employee is salaried, there is generally an expectation that they will be working 40 or more hours per week most weeks. One of the benefits to them is they don’t get docked pay if they miss an hour here and there for a myriad of reasons.

The FMLA statutes are very clear, however, that you can require an employee to take PTO or go unpaid for time missed due to FMLA reasons. So in this case, I’d require them to use PTO. Every company has their own practices, and where I’m at I don’t have a salaried employee take PTO/go unpaid for FMLA unless it’s for more than an hour.

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Persist February 19, 2021 at 12:36 am

So, in the letter, the employee’s supervisor says this particular employee stays late regularly and generally exceeds 40 hours a week. So your question is not reflecting the letter.
If your employee who is using FMLA during the week is not making up time in the evening, and does not regularly exceed 40 hours, you may request they use their sick leave or take the time unpaid for the hours missed due to FMLA, as Suzanne discussed. The purpose of salaried exempt is that the employee is evaluated on the work completed; not on “hours worked”. If there are performance questions related to missed deadlines or work not being completed on time, I would treat that separately than the issue of FMLA. If you believe this employee should be evaluated on hours worked…evaluated their role to ensure it does actually meet the standards to be an exempt role. Note that you can change the role to non-exempt even if it qualifies as exempt; the law exists to protect non-exempt employees right to overtime pay.
Warning: if you choose to take punitive action, and strictly enforce “hours in seat” for a salaried exempt employee…you may end up with malicious compliance. Times when that employee would otherwise have stayed late, they decline to stay late for, etc. This individual is intended to have significant responsibility, per the classification standards for exempt employees. Having them track hours (or you track hours) of FMLA used is one thing; but docking pay over under 5 hours a week when they are not in the office is overkill for employees who are expected to answer emails in the evening, field calls, stay late, etc…

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Emily J February 16, 2021 at 6:44 pm

I agree with the idea that as an exempt employee she should just be afforded this flexibility and not docked pay, but wouldn’t you want to track this as intermittent FMLA so she doesn’t end up with an unlimited bank of FMLA time? Let’s say she does this for 9 months at 3 hours a week. That’s almost 3 weeks of time that isn’t being counted against her FMLA entitlement. This person may not be looking to take advantage of FMLA, but there’s always people who will and you could get into trouble for not handling these kinds of situations consistently. What do you think?

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Deb S February 16, 2021 at 9:23 pm

I agree, If the FMLA is not tracked then another employee who clearly takes advantage of PTO and FMLA, acts in a similar manner it could become a mess that doesn’t need to be.

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Persist February 19, 2021 at 12:44 am

For my direct report who regularly worked 50+ hours a week, we did a “flex time” start. She always put in the time, met deadlines, and was there to put out fires. She often covered swing shift or graveyard emergencies, and consistently delivered quality product. Our arrangement was that she only pulled from her intermittent FMLA if she was going to be atypically short on hours (below 35/wk) or if full days were missed and she hadn’t covered weekends. It didn’t seem right to use her FMLA bank on weeks she already worked 6 days on & needed 3 hours Friday. Flextime really resolved that; it also helped other managers understand that it was unreasonable for someone who started at 1am to still be at work at 2pm. YMMV. That’s just how we handled it.

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LavaLamp February 16, 2021 at 8:42 pm

Having had intermittent FMLA for years, I just had a sheet or a website depending on the company handling benefits that I recorded FMLA time in. One company had a time sheet I filled out and my manager signed and I spent ten minutes yelling at the ancient fax machine, and another had a website I logged into and recorded information. It’s usually between the FMLA person and the benefit company in how they track the time.

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Annie Higgins February 18, 2021 at 12:30 am

My suggestion? Start looking for a new employer!

FMLA should always be tracked, regardless of whether it’s being paid or not, for those who say people can take advantage. I would never dock an exempt employee’s pay (or get on board with an employer who does) for intermittent FMLA, especially because that employee is making up the time. It sounds like this employer needs to re-evaluate their out of date policies.

Also, I love your suggestion of changing the employees work hours. That’s a great way to get around this ridiculous policy.

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