An employee is off due to a balance/vertigo type condition that makes him unable to drive or ride in a vehicle. He is an outside salesman and does not want to apply for FMLA but rather work from home. Short term, let's say a week I could agree, but this i

An employee is off due to a balance/vertigo type condition that makes him unable to drive or ride in a vehicle. He is an outside salesman and does not want to apply for FMLA but rather work from home. Short term, let's say a week I could agree, but this is not a long term solution. Although he does not want to apply for FMLA can I designate this a partial FMLA, since he is only able to do part of the job from home? Then follow up question a salaried associate is treated like hourly for the unpaid hours...correct? Figure out how many hours are FMLA and deduct from pay?

1 answer  |  asked Sep 15, 2017 09:01 AM [EST]  |  applies to Pennsylvania

Answers (1)

Harold Goldner
You are confusing FMLA and the ADA (but don't worry; the intersection of these two has been dogging employment practitioners and HR managers for years).

An individual is typically eligible for FMLA when due to a serious health condition, they are incapable of performing the essential functions of their job. No "accommodation" will enable them to function productively. If he can perform some, or a substantial portion of his job, just not do the driving part, then he's not FMLA eligible.

If, on the other hand, he is seeking an "accommodation" so that he can continue to do his job, albeit a week long no-driving modification, that means he's not taking FMLA, he's being 'accommodated' under the ADA, in which case he continues to work his full day/week, etc.

If he's already overtime exempt, that is, he earns a salary or a base plus commissions over ~$24,000/year, then you don't dock his pay, not for ADA. If he's taking FMLA, then that's in accordance with your company's policies. FMLA does not have to be paid, and policies can require employees (exempt and non-exempt) to use up accrued PTO, if any. You don't get to convert a salaried employee into an hourly employee and then dock pay.

I suggest that if your company has HR issues instead of trying to resolve them with questions online, you contact a reliable employment lawyer who handles employer-side issues such as this.

posted by Harold Goldner  |  Sep 15, 2017 09:39 AM [EST]

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