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Do I Have To Pay A Salaried Employee For Sick Days?

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Question: Can you dock a salaried employee for sick days? Our company doesn’t offer sick leave.

Answer: Under U.S. Department of Labor regulations, an employee must be paid on a “salary basis,” and meet other criteria established in the regulations, in order to be exempt from the Fair Labor Standards Act’s overtime requirements. The salary basis test is not met if an employer makes deductions from the employee’s compensation for absences of less than one day. Deductions may be made, however, if the employee is absent from work for one or more days for personal reasons, other than sickness or accident. Only if the employer has a bona fide sick leave policy can the employer deduct absences of a day or longer. On the other hand, if the employee misses an entire week of work – regardless of reason – the employer can reduce the employee’s compensation accordingly. Finally, under the Family and Medical Leave Act (which applies if the employer has 50 or more employees), deductions of pay for “intermittent leave” of less than one day will not violate the salary basis test.

It should also be noted that simply paying an employee a salary, as opposed to an hourly wage, does not necessarily exempt the employee from the overtime laws. The wage and hour regulations specify several specific categories of employees who may be exempt, provided they meet specific criteria. The most common overtime exemptions are the so-called white collar exemptions, and include exemptions for “executive,” “professional,” and “administrative” employees. Determining whether one of these exemptions applies to a specific employee or job is fact-intensive and usually requires a review of the relevant job description and other information about what the employee actually does.

Finally, a slew of states and local municipalities have been enacting sick leave laws so be sure to check your own and make sure you don’t have to offer sick leave to your employees, salaried or not.

This response is intended for general informational purposes only and should not be construed as legal advice or a legal opinion, nor is this column a substitute for formal legal assistance. For help with particular legal needs, members are invited to consult with ACCA’s LegalTools Counsel, Brooke Duncan III of Adams and Reese LLP. Mr. Duncan can be reached at 504-585-0220 or by email at

Hilary Atkins

Posted In: Legal

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