absence from work

[rmcnellis]

What is the name of your state? montana

I understand from reading my employee handbook that vacation, lunch breaks, and rest breaks are a privilege and that an employer has every right to replace you if you don't come to work and/or do your job. My situation is that I had to have oral surgery this year and I also was out of work with bronchial pneumonia twice, in addition to 8 days of vacation that I have taken so far this year. The medical absences were all ok with my employer at the time as long as I had notes from my physician (which I did.) The paid vacation time was also ok'd by my supervisor in writing. By the way, I am salary. So last week when I came back to work (without clearance from my physician), my supervisor approached me and told me that my absences were excessive and that the accounting department head and the owner of the dealership were starting to notice. The days I have been gone including my vacation is 22. We agreed that it would be reasonable for him to dismiss me or ask for my resignation if I'm absent anymore, although he says my performance is outstanding. My question is, is there any protection for me? If I get really sick and I'm in the hospital can they fire me for that or harass me about it? Can they dock my pay now for the days I have been absent in the past? Can they dock my pay at all even though I'm salary? Can they not pay me for my approved vacation time (they said nothing about doing so until I had returned from my vacation). My supervisor's reasoning is that "no one else who works has gotten paid for their sick time" which I know is untrue because we are salary and no one else I've talked to has ever been approached about their absences (even those who aren't legitimate like calling off for hangovers and etc.) Any feedback sure is appreciated. I like my job, but now I'm terrified that if I have a family emergency or something I'll be unemployed. Thanks

 

[Beth3]

1. How many employees are there at this place?

2. How long have you worked there?

3. Are you a full-time employee?

If you can answer those, it'll really help in deciding what laws may be applicable here.

 

[rmcnellis]

there are approx. 45 employees at my work place, more than 2/3 of them are salary. I am in one of the assistant management positions and am full time. I have been employed with this company for 1 year and 5 months. Thank you.

 

[Beth3]

What I needed to determine was whether you/your employer are subject to the federal Family and Medical Leave Act. You're not. That only applies to companies with 50 or more employees.

Unless Montana has it's own version of the FMLA that applies to smaller employers (possible but doubtful), then I'm afraid you're SOL. You're employer is entirely free to set their own leave policy (or even offer none at all) and administer it as they wish. It does indeed appear they can terminate you without consequences if you have further absences.

For what it's worth, even though an employee may have legitimate reasons for being absent frequently, there can come a point in time where the employer has to decide to replace that person simply because they need someone they can count on to be there and get the job done.

As far as docking your pay goes, "salaried" has no legal standing. It is only a pay method.

If you are in a non-exempt position, the employer need only pay you for the hours you actually work. If you are in an exempt position, the employer may dock your pay in full day increments if you are absent for a full day for (i) your own illness and have already exhausted the employer's paid sick/personal day plan or (ii) if you are absent in full day increments for purely personal reasons (such as taking off to care for an ill child.)

If the employer wishes to apply vacation or other paid time off they offer to absence time you've had, they are free to do that.

 

[rmcnellis]

ABSENCES

beth, so i guess what i still don't quit get is even if they wish to apply my vacation time to my previous absences after the fact, can they take money away from my pay this period for days i was absent previously in excess of the vacation time i had coming. example: i have been gone 14 days excluding vacation time and they apply my 8 vacation days to those 14 absences, leaving 6 days i was absent and paid for. Those 6 days date from 1-5 months ago, can they now actually take money off of my gross pay in order to "not pay" me for absences which occurred previously? and if my dealership did have more than 50 employees (which it well may i just guesstimated before) what would that mean for me? thanks.

 

[Beth3]

I'm not aware of anything in the law that would prohibit this but taking deductions so long after the fact strikes me as questionable. If they did do that or will, I'd suggest you call your State's Department of Labor/wage and hour division and inquire about this.

If your company is covered by the FMLA, that means employees would be entitled to up to 12 weeks of leave time during a 12 month period (or calendar year) for a variety of reasons including the employee's own serious health condition and/or that of an immediate family member. FYI - that's 12 weeks for all reasons combined within a 12 month period.

There's considerably more to it than this. You can get tons of information off the internet on the FMLA.