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  • Time Off/exempt employee Idaho

    I have an employee that is not on WC yet, but we have put in a claim. He has been taking long lunches to relax and rest because of the pain. He has also attended dr's appoints. I realize we do not have to offer more PTO and he has run out. Therefore, do we have to pay him for a full day when we require using PTO in 4 hour increments (which I'm also not sure it OK) I guess I'm conflicted because in previous employment, employees who were exempt would receive an entire day of pay if even working for 1 hour. I hope this made sense....

  • #2
    Under Federal law, if he works any part of the day, he MUST be paid for the entire day, although some or all of that pay can be taken from his paid leave allotment (the Feds don't care what bucket the pay comes out of as long as he gets full payment). The ONLY exception, EVER, is if the time he takes off is attributable to FMLA.

    If he has used up all his PTO time, you still have to pay him for the entire day as long as he works any part of the day and the time he is off is not eligible for FMLA protections.
    The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.

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    • #3
      Just so you know, this time isn't going to be covered under WC. WC does not pay for long lunches, nor time spent attending doctor's appointments. That is true in all 50 states.

      The bigger issue is why is he just now filing WC? And, do you have documentation from the doctor, WC or not, that indicates that this person can work and lists the restrictions? If not, I'd be insisting upon it. Being on WC does not mean the employee can come and go as he pleases.
      I post with the full knowledge and support of my employer, though the opinions rendered are my own and not necessarily representative of their position. In other words, I'm a free agent.

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      • #4
        We didn't file initially because it was a vehicle accident that was not his fault. We thought it would all be covered under the other persons insurance. As you can tell I'm new at this, so I guess it just didn't register at the time that it was still a work related injury. And no, I don't have any documentation, we don't normally keep any medical information here at the office.

        On a side note, can the person refuse to use up all vacation/sick time? or can we force to use it all?

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        • #5
          You can force him to use it. You can also discipline him for excessive absences if you have a valid reason to believe he is milking the system.
          The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.

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          • #6
            Yes you can dock his leave for the long lunches and appointments. No, he can't stop you from doing so. Yes, you need to file this as WC asap. More than likely the claim will be subrogated (fancy term for WC will recoup their losses from any 3rd party insurance carrier).

            WC medical information may be obtained and does not violate HIPAA or other laws. I would be asking for documentation immediately. I never let an employee return without it.
            I post with the full knowledge and support of my employer, though the opinions rendered are my own and not necessarily representative of their position. In other words, I'm a free agent.

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            • #7
              I don't think its an issue of "milking" I was just curious on my part about that.

              Do I really need to get something from the doctor? or is that something between him and WC? We are not "fighting" him about time off, it was just a "what if" question on that. Thank you for your help, I feel like I'm treading water on some issues.

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              • #8
                You really should have something from the doctor for your woen reasons. Anytime an employee is requesting time off due to an injury, I'd want to have it backed up by the doctor. Even if I know they are not faking it, I want ot know that they are cleared to work and not risking further injury or causing additional damage. And yes, I have some employees who try to work against doctor's advice. No, I don't permit it.

                What WC requires before they will accept the claim is their call. They will not cover the time missed unless a doctor certifies it and justifies it. I can just about guarantee they will not pick up the time taken off for lunch and time for doctor's appointments is not covered.

                I wouldn't base my employment decisions on what WC does. I would look at what makes sense for your business. If yo ucan accommodate the long lunches and rest breaks, there is not reason not to allow it. Iwould still makes sure for liability reasons that the doctor supports the employee working and the accmmodations.
                I post with the full knowledge and support of my employer, though the opinions rendered are my own and not necessarily representative of their position. In other words, I'm a free agent.

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                • #9
                  One more question, ok two. One where do I find information on WC in plain english & Two: At what point do we say you are missing too much work? We are not required to offer FMLA as we are small. If he is showing up 2 hours a day every day and still getting paid for 40, that is taking advantage of the system in my opinion. Can you let an employee go for that reason or would it be against ADA?

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                  • #10
                    1. Good luck with that. Your best bet is to ask your/your carrier's legal counsel for guidance.

                    2. The million dollar question. There is no hard and fast guideline for how much work someone can miss and what is reasonable. Every business and every job is different. This is one reason that communication and documentation from the doctor is key. You have to know what the doctor is really supporting or recommending before you can do anything else. In the event you get a note from the doctor that just says the employee may work as tolerated, I'd be contacting the doctor for more details. Maybe send a sample schedule and ask if it is reasonable for the employee to work as they have. When questioned directly most doctors will give you some more guidance on what should be "tolerated" medically. WC is exempt from HIPAA so you can speak to the doctor directly if you need to. I would also check with the carrier for medical records or guidance on what the doctor's reports say. It might be necessary to send the employee for an IME if it appears the employee is dragging this out or the complaints are out of proportion with the objective findings.

                    ADA only applies if this is a permanent or long term condition. If he just needs reduced hours or accommodation for a period while healing, it isn't covered. You need to determine whether ADA even applies before going down the road of possible accommodations. I'm not saying you shouldn't try and work with an employee who is temporarily requesting assistance, but do so under that guise and with the knowledge up front that this is temporary and with an end date.
                    I post with the full knowledge and support of my employer, though the opinions rendered are my own and not necessarily representative of their position. In other words, I'm a free agent.

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                    • #11
                      Sorry, thought of another. For the exempt employee, since we have to pay for any porition of the day worked, can we recoup our losses by taking that time out of vacation/sick leave that has not yet been earned?

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                      • #12
                        Yes, you can if you want to. Whether it is a good idea or not is another question. If this person quits while still in the red, you are going to have difficulty recouping the money.
                        I post with the full knowledge and support of my employer, though the opinions rendered are my own and not necessarily representative of their position. In other words, I'm a free agent.

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                        • #13
                          Are there other options? If the person leaves, I doubt we would try to recoup, but I guess its something...

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                          • #14
                            I'd start by getting to the root of why they are missing time and at the very least make sure that the doctor is actually validating it. Talk to your carrier as well about an IME if you think the doctor is just writing notes that say whatever the employee wants. I have a few doctors like that. I see that is who an employee is treating with, and we get an IME.

                            If you want to take a hard line approach, you can simply deny the time off going forward, particularly without a doctor's note. Since FMLA does not apply, the doctor's note has no force in law anyway. In other words, even if the doctor said the employee needed a two hour lunch everyday, you would not have to honor it. If ADA did apply, which is far from certain, you may have to make a reasonable accommodation, but it still wouldn't have to be the 2 hour lunch.
                            I post with the full knowledge and support of my employer, though the opinions rendered are my own and not necessarily representative of their position. In other words, I'm a free agent.

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