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What’s the Fun of Being Exempt if I Can’t Take Off in the Middle of the Day? [HorroR Stories]

Dear Mme. HR,

I have a chronic health condition which requires me to see doctors regularly during the day. My boss is totally unsympathetic and even though I’m supposed to be exempt, she’s trying to make me track all these appointments as sick hours. Do I have to do that? I thought being exempt meant they couldn’t track my time? Plus I’m always working events on nights and weekends so shouldn’t they pay me OT if they’re gonna make me track sick hours? I tried talking to her but she just flew of the handle about it and the HR Department at my company is totally unhelpful. What should I do?

Boss Makes Me Sick

Dear Sick,

Your letter has caused me to reflect a little on what I often don’t, and that, my friends, is that the “H” in “HR” stands for human. Then how ironic is it that sometimes it seems there is nothing human about what we do? And, dear readers, if there is anyone out there who is a dyed in the wool, hard core, pant suit wearing, spunky short hairdo HR professional, and I’ve just offended you and the cat poster on your wall, then all I can say is: I’ve just offended you now? Where have you been the past year? Please, go back and read my other posts, please, my self-esteem likes to see them pop up in the FaN top 5.

In these types of situations I always ask myself, what are we afraid of by doing the right thing for the employee? Are we afraid that you aren’t really sick and you’re just scamming us into taking lots of afternoons off? Are we afraid of setting a precedent in the company and now everyone wants to take lots of time off? Are we afraid that whatever work you would be doing is not getting done by you being gone on various afternoons? It’s pretty sad that your boss has to create an extra layer of stress for you in what I am sure is already a stressful situation.

Your question lies at the intersection of three very important and puzzling aspects of employment law: Family Medical Leave (FMLA), Americans with Disabilities Act (ADA), and Wage and Hour. Let’s discuss each:

Wage and Hour: As you state, you are exempt. I don’t know the nature of your duties or tasks, so I can’t really say for sure whether this is a correct classification.

However, your only beef seems to lie in the fact that your boss seems to care more about the hours you aren’t working then the ones you are. There are a lot of opinions floating around out there about how to handle partial day absences for exempt employees. In many cases it has to do with the state you live in. But, in general, as long as they don’t dock your pay, they can, in theory, deduct the hours you are out of the office from your sick time or vacation time or whatever paid time off you have available.

However, I think most companies skew toward the conservative. There are courts and states (I’m looking at you, California) that really, really don’t like this and will rule that you’ve put the employee’s exemption status at risk by doing this.

It’s not clear. Believe me, I’ve sat through many a seminar where the power point slides regarding this matter were unending. The Labor Boards of various states will release guidance saying partial day deductions from sick or vacation time are permissible but then circuit courts will rule in the opposite direction.

Again, let me reiterate, they can never, never, never, dock your pay for partial days (unless you are on a leave of absence, so I guess, technically, not “never”, but close enough), however they can try and make a case for charging your doctor’s appointment time to your paid time off banks (even if it puts your balance in the negative).

I think it’s risky for your company to be doing this, from a legal and an employee relations standpoint, I’m not sure how helpful that opinion actually is, but there it is.

FMLA: Hello FMLA, my old friend, I’ve come to talk with you again. Because the readers of this HR blog, love to ask me questions about your…what rhymes with blog? Clog? Slog? Damn it, I can’t come up with a good one.

Anyway, so FMLA, as I stated earlier provides the only legal way your company can dock your pay for these absences. So, if you decide you want to move this dance under the umbrella of FMLA, then it now becomes legal for your company to dock your pay when you are absent.

There still lies a gray area when it comes to the whole “partial day” thing, because if you are only gone partial days then technically this is an intermittent leave, but I think the argument will sway in your employer’s favor on this one. Or, maybe not, a lawyer might disagree with me.

But, again, remember, there is a difference between docking your pay, and using your sick/vacation/PTO time. And, as usual, a lot of it has to do with your company’s policy regarding leaves and sick time and all that jazz. For example, if they require you to use all of your PTO while on leave, then there you go, bye-bye vacation to Bermuda. I just think that if you were classifying your time off as a FMLA leave, then it would be difficult to make the whole exempt/non-exempt argument.

If it was me, and I was you, I would try and avoid the FMLA issue even if it does provide job protection. I don’t know how serious your illness is, and if it’s something that you will be dealing with for a long time, and at some point you might actually have to go out on a full-time bonafide FMLA leave then I’m guessing you’ll want as much time available to you as possible. Bottom line, don’t bring it up unless they do.

ADA: Okay, depending on if your employer fails under the ADA (most do), and your illness falls under what could be considered a “disability” your employer should accommodate your need to see the doctor.

Side note, the definition of “disability” gets broader and broader all the time, so for the most part employers tend to defer to doctors on this one. There are certain diseases that automatically qualify as a “disability” and must be accommodated. These include: HIV/AIDS infection, epilepsy, diabetes (although, who doesn’t have diabetes these days?) and something else. I can’t remember what the other one was, heart disease maybe, I don’t know. Google it.

Please note that I’m making generalities here and your specific situation may be different so I would talk to your doctor first, HR Department second, and then any state regulatory agency third if things get sticky.

Anyway, without knowing your condition but noting you said it was “a chronic health condition” you are dealing with, I’m assuming you would be considered “disabled” for the purposes of the ADA and your employer is required to accommodate your need to see the doctor on a regular basis. This has nothing to do with whether or not they should dock your pay, or charge your PTO for you time off, it only has to do with the fact that they have to let you do it. I just wanted to make the point that ADA can be your friend in this situation.

Now back to the human part of all of this. What you say in your letter is concerning. I don’t know your boss, and I don’t know what she knows about your condition, but her behavior is an example of how some managers don’t seem to understand the distinction between paying someone for their time and paying someone for the job they do.

I’m assuming that despite the time you need to spend out of the office, you are getting your job done. You work extra hours, sometimes nights and weekends. It vexes me to no end when managers and supervisors get so ticky-tack about employee’s hours. Especially exempt employees, because to me the nature of calling a job exempt is that we are not paying them for the hours they work but for the job they are doing.

I think managers who do this are weak. Yes, I think your manager is weak, because it is easy to rant about someone who has to miss a couple of hours on a Thursday morning every week but hard to actually step up to the plate and hold that person accountable for their job and their performance.

So I hope you are doing your job well and that maybe she isn’t having this reaction because what she really wants to yell at you about is the fact that you suck at your job. But let’s assume that’s not the case, and she’s just some insensitive demon person and go from there. Okay, so then—what is her problem anyway?

Here is what I would do if I were you:

  1. Call a meeting with your manager. Invite HR if you think that’s appropriate.
  2. Explain to her (I don’t know how much you have told her so far, so you can wing this part) that unfortunately you have a chronic health condition that will require you to go to regular doctor’s appointments during the day. Do not tell her what your condition is (unless she already knows), even if she asks, she does not need to know.
  3. Ask her if there is a preferred day/time that you schedule these appointments. Sometimes managers just want to be asked. For example, if there is a weekly meeting on Fridays that she doesn’t want you to miss, or if she prefers you not go during lunch times because the office will not be covered. Come to some sort of agreement and then try to schedule this with your doctor. If these are regular appointments, maybe you can always pick the same day and time thus making it easier for all. Essentially you are creating a new schedule for yourself.
  4. Remind her that you often “make up” the time you are out of the office by working evening and weekend events so you don’t really think it is necessary to charge the missed time to your sick time since most weeks you are technically working 40+ hours.
  5. If she still expresses concerns over your missed time, try and address them. Try and root down to what the issue really is with her. Is it that no one is around to answer the phones during lunch? Okay, make sure you don’t schedule your appointments during lunch.
  6. Try to remain professional and unemotional. That may be asking for a lot, but it will help if you can do it.

All this FMLA, ADA, Wage and Hour stuff is just info for you to keep in your pocket. I wouldn’t go into this initial meeting waving these guns around yet.

See how she reacts, give it a little space. Unfortunately we can’t force people to be sympathetic, or decent, but from her perspective, you were hired to do a job and that job needs to get done. So do your best and I think it might blow over.

If not, call the EEOC or FEHA or the FLSA or DLSE or whatever acronym you want to use, and press the point. By the way, I don’t think you really want to be non-exempt, so don’t make the threat unless you mean it.

Oh, and by the way again, all my ranting here is predicated on the assumption that your job isn’t police officer, or toll both guy or lifeguard, or something else where your presence in a certain spot during certain hours is an essential piece of your job. If you are and it is, then maybe I would see if you can create a schedule that allows for this time off. If that doesn’t work then start with the acronyms (or your union if you have one), throw ADA etc. in their faces and see what happens. Godspeed, little doodle. And take care!

Good luck out there,

Mme HR

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