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Exempt Employees: Applying FMLA & FLSA

We learned the purpose of the FLSA from our previous blog post.  Now we will review how exempt employees are affected by the FLSA when the Family & Medical Leave Act (FMLA) is applied.

Per the FLSA, Exempt employees are required to meet specific duties  and salary basis tests to be qualified for an exemption from overtime pay. Regulation Part 541 from the U.S. Department of Labor generally requires the exempt employee be paid no less than $455 weekly salary. The final regulation goes on to explain that any work performed during the workweek will require the employee to be paid their entire weekly salary. Employers are allowed to deduct pay in full-day increments only when the exempt employee is absent for personal or medical related reasons.

How does this apply to FMLA?

The FMLA provides unpaid leave to eligible employees and forbids this leave from affecting an employee’s status. Because of this, the FLSA does not require an employer to pay an exempt employee their full salary for any work-weeks where they take intermittent or reduced FMLA leave. Per FMLA regulation 29 CFR 825.205, the employer is allowed to pay a pro-rated amount of the full salary for only time actually worked. The U.S. Department of Labor (DOL) has also made a Fact Sheet on this topic, providing detailed explanations on the calculation of leave usage: “Where an employee takes FMLA leave for less than a full workweek, the amount of FMLA leave used is determined as a proportion of the employee’s actual workweek. The amount of FMLA leave taken is divided by the number of hours the employee would have worked if the employee had not taken leave of any kind (including FMLA leave) to determine the proportion of the FMLA workweek used.”

FMLA is one of the few scenarios in which you are allowed to deduct money from an exempt employee’s weekly salary.

Per the DOL, other exempt deductions from pay are allowed:

  • When an employee is absent from work for one or more full days for personal reasons other than sickness or disability;
  • For absences of one or more full days due to sickness or disability if the deduction is made in accordance with a bona fide plan, policy or practice of providing compensation for salary lost due to illness; (before the employee has qualified for the plan, policy or practice or after the employee has exhausted the leave allowance under the plan.)
  • To offset amounts employees receive as jury or witness fees, or for temporary military duty pay;
  • For penalties imposed in good faith for infractions of safety rules of major significance;
  • For unpaid disciplinary suspensions of one or more full days imposed in good faith for workplace conduct rule infractions;
  • In the employee’s initial or terminal week of employment if the employee does not work the full week, or
  • For unpaid leave taken by the employee under the federal Family and Medical Leave Act.

If you have questions about an employee’s status and their FMLA eligibility, please contact EAF today!






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EAF provides information about current developments in labor and employment law. This information is intended for educational purposes only and should not be considered legal advice. Questions requiring legal advice should be addressed to the attorney of your choice. EAF members may be able to obtain a legal interpretation through our FREE Legal Hotline.