Tag Archives: PTO

Planning for the Next Hurricane: Employee Pay During and After a Storm

With the onset of the 2018 hurricane season and the effects of Hurricane Irma still being felt by many, employers have a number of concerns. These concerns range from preparing facilities to determining whether a business will stay open. At some point, after decisions have been made about whether a business will stay open and if goods or people need to be moved out of harm’s way, the questions relating to employee pay may arise.

One question that is frequently asked is “Should I pay exempt employees who miss work due to bad weather conditions?” When it comes to deductions from exempt employees’ salaries, it is easy to get into trouble. The general rule is that an exempt employee is entitled to receive his or her entire salary for any workweek he or she performed work. This means, if the work site closes for a partial week due to bad weather conditions (such as a hurricane) and the exempt employee has worked during that workweek, the employee is entitled to his or her full salary. However, if the employer has a leave benefit, such as PTO, and the employee has leave remaining, the employer can require the employee to use paid time off for this time away from work. If the employee does not have any remaining leave benefit, he or she must be paid.

If the work site remains open during inclement weather and an employee is absent (even if due to transportation issues), the employee can be required to use paid time off. If the employee does not have any paid time off remaining, the employer may deduct a full-day’s absence from the employee’s salary. For a more detailed explanation visit dol.gov.

Other issues that arise relate to what constitutes compensable time for non-exempt employees. The FLSA only requires that non-exempt employees be paid for the hours they actually work. However, those non-exempt employees on fixed salaries for fluctuating workweek(s) must be paid their full weekly salary in any week for which work was performed. Further, those businesses, such as hospitals and nursing homes, that remain open during a storm and require employees to remain onsite during the storm may have to pay employees required to be onsite during a storm for all time they are at the employer’s place of business, as they may be considered to be “on call.”

It is important for businesses to start planning in advance for the next hurricane. Such plans should include evaluating which employees may be required to continue working during a storm and what portion of their time during a storm is considered compensable.

Heathcare employers also have new ACHA rules to comply with relating to storm preparation (not specifically related to employee compensation). For further information on these regulations see my colleague Steven Brownlee’s recent article, “Senior Living Providers: Are you ready for the Beryl, Chris, and Derby?

Jennifer Fowler-Hermes
jfowler-hermes@williamsparker.com
941-552-2558

Should I Pay Exempt Employees Who Miss Work Due to Bad Weather Conditions?

As Florida prepares for a potential direct hit by Hurricane Irma, employers have many concerns. At some point, when decisions have been made about if a business will stay open and if goods or people need to be moved out of harm’s way, the following question will most likely be asked: “Should I pay exempt employees who miss work due to bad weather conditions?”

When it comes to deductions from exempt employees’ salaries it is easy to get into trouble.  The general rule is that an exempt employee is entitled to receive his or her entire salary for any workweek he or she performed work. This means, if the worksite closes for a partial week due to bad weather conditions (such as a hurricane), and the exempt employee has worked during that workweek, the employee is entitled to his or her full salary. However, if the employer has a leave benefit, such as PTO, and the employee has leave remaining, the employer can require the employee to use paid time off for this time away from work. If the employee does not have any remaining leave benefit, he or she must be paid.

If the work site remains open during inclement weather and an employee is absent (even if due to transportation issues), the employee can be required to use paid time off.  If the employee does not have any paid time off remaining, the employer may deduct a full-day’s absence from the employee’s salary. For a more detailed explanation see this opinion letter from the U.S. Department of Labor.

As for non-exempt employees, the FLSA only requires that employees be paid for the hours they actually work. However, those non-exempt employees on fixed salaries for fluctuating workweeks, must be paid their full weekly salary in any week for which work was performed.

Jennifer Fowler-Hermes
jfowler-hermes@williamsparker.com
941-552-2558

How Well Do You Know Intermittent FMLA Leave?

A recent Family and Medical Leave Act case decided by the 11th Circuit Court of Appeals offers some clarity on one of the most challenging aspects of administering FMLA, the dreaded intermittent leave. Intermittent leave is when an employee takes leave on an intermittent basis or a reduced schedule when medically necessary to care for a seriously ill family member, covered service member, or because of the employee’s own serious health condition.

The 11th Circuit’s recent case involved an employer that provides in-home healthcare services to the terminally ill and an employee that worked as a clinical social worker with many duties relating to care plans for the employer’s terminally ill patients. The employee requested intermittent leave to care for her elderly mother who was quite ill. The employer approved her leave request.

The employer’s leave policies required employees use PTO concurrently with an approved medical leave. In the six months following her initial request for leave, the employee frequently received notices from her employer keeping her advised of her PTO usage and letting her know when her PTO balance was low. It also reminded her that exhaustion of PTO, along with absences, could adversely impact her job and benefits.

Ten months after her initial request for leave, the employer requested not only an updated certification, but also additional documentation “to support the need of intermittent use of FMLA.” Shortly thereafter, the employer advised the employee that her leave entitlement was running low, that she may want to conserve her remaining FMLA leave, and that her continued time away from the workplace compromised the quality of care being provided to patients. Shortly thereafter, the employee altered the plans she had made to care for her mother, choosing not to take an approved leave.

Eleven months after she began using intermittent leave the employee was separated from her employment. She was informed that she was separated for poor performance. Her performance issues were documented by the employer. These issues included care plans not being timely updated, a patient without a care plan, time sheets for patient visits not being timely completed, and failure to coordinate the bereavement group. However, just days before her separation, the employer mentioned in a discussion regarding her performance issues, that “’quality of care’ [was] suffering due to repeated ‘emergent’ leaves of absence.”

How did the court evaluate these facts when the employee asserted an interference claim? Did it find that the employer’s record of performance issues supported the decision to terminate? Did it find that the employer interfered with the employee’s use of her FMLA entitlement? Need some help? Well, here are some FMLA facts that may assist in analyzing this fact pattern:

  • The regulations provide that when an employee takes unforeseeable FMLA leave, the employee must notify the employer as soon as practicable in compliance with the employer’s usual and customary notice and procedural requirements for requesting leave.
  • The regulations interpreting the FMLA provide that, aside from an annual re-certification, an employer is prohibited from obtaining additional documentation from the healthcare provider once a complete and sufficient medical certification has been obtained.
  • If there is an existing certification, an employee’s notice to the employer that there is a recurrence of the need for leave, is sufficient notice to the employer.
  • When an employee’s FMLA leave entitlement is exhausted, any further absences are not subject to the protections of the FMLA.
  • An interference claim is established when an employee shows that she was denied a benefit to which she was entitled. Benefits under the FMLA include taking leave and being reinstated following a leave period (subject to certain restrictions).
  • Unlike retaliation claims, intent is not relevant to an interference claim. Interfering in an employee’s ability to take leave encompasses not only refusing to authorize such leave when an employee is qualified, but also discouraging an employee from using such leave.
  • To recover for interference, an employee must show that she was harmed by the interference.

Although the district court granted summary judgment for the employer on the employee’s interference claim, the 11th Circuit Court reversed. The 11th Circuit found that many of the employer’s statements, such as, “[y]our continued unpaid time away from the workplace compromises the quality of care we are able to provide as an organization,” discouraged the employee from using the time she was entitled to. Further, since the employee was terminated, she suffered damage.

So, you ask, how does this case provide clarity? For one, it affirms that generally employers should not be requesting additional documentation from an employee already on an approved intermittent leave. Second, employers should avoid making statements that may be interpreted as discouraging the use of leave. Next, when discussing performance issues with an employee on an intermittent leave employers should not provide a causal connection between the leave and the performance issue, i.e., focus on a discussion of the performance difficulty and ascertain what can be done by the employee (other than to stop missing so much work) to improve performance. Finally, do not forget that during the period of intermittent leave, the employer may require the employee to transfer temporarily to an available alternative position with equivalent pay and benefits, for which she is qualified and which better accommodates the intermittent nature of the leave.

Should I Pay Exempt Employees Who Miss Work Due to Bad Weather Conditions?

When it comes to deductions from exempt employees’ salaries it is easy to get into trouble.  The general rule is that an exempt employee is entitled to receive his or her entire salary for any workweek he or she performed work. This means, if the worksite closes for a partial week due to bad weather conditions (such as a hurricane), and the exempt employee has worked during that workweek, the employee is entitled to his or her full salary. However, if the employer has a leave benefit, such as PTO, and the employee has leave remaining, the employer can require the employee to use paid time off for this time away from work. If the employee does not have any remaining leave benefit, he or she must be paid.

If the worksite remains open during inclement weather and an employee is absent, the employee can be required to use paid time off.  If the employee does not have any paid time off remaining, the employer may deduct a full-day’s absence from the employee’s salary. For a more detailed explanation see https://www.dol.gov/whd/opinion/FLSA/2005/2005_10_24_41_FLSA.pdf.

Jennifer Fowler-Hermes
jfowler-hermes@williamsparker.com
941-552-2558