Expert: Shirley McAllister, CPP, PHR - 10/28/2009

Question
I read a recent Q&A on your site in which the answer was:

"You have to be paid your full salary unless you are gone one full day for personal reasons. If you are sick you must be paid.

If your company gives you sick pay or PTO time than it can be used for the time missed. The DOL says you must be paid for the time off, but they do not care which pot it is paid from. If there is a sick pay or a PTO plan it is perfectly legal to pay it from that plan.

The reason for this is that sick pay and PTO are not required by the government or by and labor laws. If the employee gives them to the employee than it is considered a fringe benefit and it is regulated by the company and the policies of the company. They can say when it may or may not be used."

This touches the issue I have, but does not clarify it completely.

I am an exempt, salaried employee in NY state.  I am not concerned, here, about what the laws mean to non-exempt – just exempt – employees.  I have worked in this capacity in NY for over 25 years (all along, filling out time cards to track my time) and have seen all kinds of "schemes" for handling personal time and sick time for exempt employees.  From "unlimited sick and personal" to pools of hours that one accrues over time, to their being no job charge at all.

The company I currently work for has decided to remove its “sick leave” option for exempt employees' weekly timecards, in lieu of adding a few days to each employee’s PTO allocations, requiring employees to use the PTO time in the event they get sick.  This not only puts an arbitrary limit on the amount of sick leave an employee can take, but removes the distinction between PTO and sick.  So here are my issues.

1) You wrote: “You have to be paid your full salary unless you are gone one full day for personal reasons. If you are sick you must be paid.”

o It seems you are differentiating PTO and sick leave.  Are PTO and sick time inherently (and legally) different with regards to how one takes it, can accumulate it, etc?  

o If different, is it legal to remove the distinction as I mentioned above?

o Hypothetically, can I not (technically/legally) take one or several days (or a few hours) off every week, for sick leave, and expect that my company must pay me for the full week, regardless of any “pool” or “fringe” benefit?

o If not what did you mean?

o If you did mean that, what good is a “pool” of sick time (your so-called “fringe benefit”)?  In other words, whether I “earn” 3 or 5 or 10 sick days a year, can I not still take 15 “sick” days off and still expect to get paid full salary? (Assuming they don’t fire me for abuse)

2) Regarding these pools, you wrote: “They can say when it may or may not be used.”

o But can they tell me when it MUST be used? For ex., can they force me to take hours/days from a PTO pool to cover sick leave.   If so, they have muddied the waters between PTO and sick, effectively treating them the same – as I asked earlier: are they the same?

Thanks!

Mike

Answer
When it is PTO it is a combined Paid Time Off. It is still a benefit given by the company. At that point there is no longer an extinction between sick time and vacation time and they no longer exist.

The law does not say that you are to be paid sick pay or vacation pay or PTO . They are all forms of a benefit given by the employer and they may be used to cover any sick days that you take off.

Yes, you must be paid for the whole week if you are off a day sick. If you have PTO time than yes the company may pay it with that time. If you do not have PTO time to use than you still have to be paid.

Shirley