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Workers comp FMLA for exempt staff
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Workers comp FMLA for exempt staff
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We have an EXEMPT staff who had a WC injury, was put off work for 3 days and now has been released to reduced work schedule of 4 hours a day. We are going to accommodate these restrictions.
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Forums » Topic Forums » Legal Forum » Workers comp FMLA for exempt staff
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Workers comp FMLA for exempt staff
posted at 3/16/2011 11:47 AM EDT
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Posts: 14
First: 6/8/2010 Last: 4/28/2011 |
We have an EXEMPT staff who had a WC injury, was put off work for 3 days and now has been released to reduced work schedule of 4 hours a day. We are going to accommodate these restrictions.
Since she is exempt, can we dock her pay for the remaining 4 hours she is not working and put her on FMLA for reduced work schedule? When she is on FMLA for WC, can we reduce their sick/vac leave accruals to the actual hours that they work? How does the lost wages/TTD work on this one? any advise will be appreciated. thank you |
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Workers comp FMLA for exempt staff
posted at 3/16/2011 12:23 PM EDT
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Posts: 4
First: 2/27/2007 Last: 3/16/2011 |
I see a couple of issues here.
First, For exempt employees, we have always followed the 'If you work for a minute, you get paid for a day' policy to avoid running into issues with the person being reclassified as non-exempt and us being hit with an overtime suit. Second, the more you pay as wages is the less your WC carrier has to pay, which keeps your rates down. Third, I also would not count leave from a WC issue towards FMLA. A WC incident means that the company is liable, not the employee. By the same token, I would leave the sick/leave accruals alone on this one. |
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Workers comp FMLA for exempt staff
posted at 3/16/2011 12:23 PM EDT
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Posts: 2442
First: 2/12/2000 Last: 9/14/2011 |
1. Without getting into all the detailed questions you asked, it feels like you want to treat this exempt person like a non-exempt person. Why?
2. If this was your VP of Finance, is that how you would handle it? For Workers Comp, Sick Leave and Vacation entitlements, all Exempts should be treated the same........ 3. As a general rule if someone is out due to a company caused accident, you would not be able to take away other benefit entitlements. You caused her the harm she is now suffering. Most companies would take a credit for the amount of WC and pay her the difference for each day so that she is kept whole. |
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Workers comp FMLA for exempt staff
posted at 3/16/2011 5:42 PM EDT
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Posts: 45
First: 1/13/2011 Last: 4/14/2011 |
1. For purposes of FMLA partial day absence you can reduce the wages/salary as you indicated. The question becomes if you want to. That is up to you.
2. You should always combine FMLA and WC when given the opportunity. It isn't about so called liability. It is about the law and the law requires you offer FMLA. Who is liable is petty and ridiculous. 3. You cannot reduce their accruals because of FMLA as this would be considered retaliatory under the regulations. (that is one of the reasons you run FMLA concurrently; to protect the employee) I have no answer regarding lost wages and TTD. This will require coordination between your WC carrier, state WC laws and your STD policy. Check with your brokers. |
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Workers comp FMLA for exempt staff
posted at 3/17/2011 3:29 PM EDT
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Posts: 2146
First: 2/15/2006 Last: 9/14/2011 |
Agree with HRPro that you can dock pay for an exempt for timeoff due to FMLA leave; it is one of the few reasons where an employer CAN do so. Whether you want to is up to the employer.
If you do choose to dock pay, then WC might very likely pay the difference as lost wages. However that means a higher claim which will play into the employer's insurance rates for years to come. Many employers weigh the two costs before making the decision. As to whether you change their accruals, some benefits, such as health insurance, ARE protected (that is you can't take away access). But usually PTO does not rise to the level of an ERISA-based plan. From the DOL "A covered employer is required to maintain group health insurance coverage, including family coverage, for an employee on FMLA leave on the same terms as if the employee continued to work...Other benefits, including cash payments chosen by the employee instead of group health insurance coverage, need not be maintained during periods of unpaid FMLA leave. Certain types of earned benefits, such as seniority or paid leave, need not continue to accrue during periods of unpaid FMLA leave provided that such benefits do not accrue for employees on other types of unpaid leave. For other benefits, such as elected life insurance coverage, the employer and the employee may make arrangements to continue benefits during periods of unpaid FMLA leave. An employer may elect to continue such benefits to ensure that the employee will be eligible to be restored to the same benefits upon returning to work. At the conclusion of the leave, the employer may recover only the employee's share of premiums it paid to maintain other "non-health" benefits during unpaid FMLA leave." To me that reads that you need to treat accrual of paid timeoff the same as you would for any employee on any type of leave. You also can not take away accruals that they already earned. But you can change how they earn accruals. For example if 20 hour a week employees get 1/2 the accrual as a 40 hour a week employee, than this is what this employee would earn on FMLA 1/2 time. |
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Workers comp FMLA for exempt staff
posted at 3/17/2011 3:30 PM EDT
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Posts: 2146
First: 2/15/2006 Last: 9/14/2011 |
And here is the link from the quote I posted above:
http://www.dol.gov/whd/regs/compliance/1421.htm#2k |
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