WI Employer not offering any sick leave - no PTO left - Wisconsin

[jmhecker]

About me:
I live and work in WI, and my employer is a small business based in WI. My employer does not offer any "sick days", and has everything grouped into Paid Time Off. We also have 'unlimited' Unpaid Time-Off as well.

I am an exempt salaried employee.

The situation:
I am out of PTO for the year, and I was recently sick for 2 full days. My employer said: "You are required to 'borrow against' next years PTO, or work 16 additional hours this week to make up for lost time". I asked about just taking unpaid time off for those 2 days, as I don't want to eat into next years PTO, and I don't have the ability to work an extra 16 hours in the 3 remaining days of this pay period. The employer stated that they are legally not able to allow me to VOLUNTARILY take Unpaid Time-Off for the days I was sick. Is that true? They had stated that if I told them that my dog was sick, that I could take unpaid time-off. Basically telling me that if I am sick anymore before the end of the year, that I should lie about it.

Is my HR manager misinformed? My HR manager does not have any formal education in HR/Employment Law, and openly admits to this. So there is a possibility that the policies that have been created were done so by an uninformed mindset.

[Payroll Guy]

Your HR department is I'm pretty sure wrong. The following is from a DOL WHD legal opinion letter from 2005.

Deductions may also be made for absences of one or more full days occasioned by sickness or disability if the deductions are made in accordance with a bona fide plan, policy or practice of providing compensation for loss of salary occasioned by both sickness or disability. Thus, if the employer’s particular plan, policy or practice provides compensation for such absences, deductions for absences of one or more full days because of sickness or disability may be made before an employee has qualified under such plan, policy or practice and after the employee has exhausted the leave allowance thereunder. See 29 C.F.R. §541.602(b)(2).

https://www.dol.gov/whd/opinion/FLSA...24_41_FLSA.htm

It sounds as your employer has "a bona fide plan, policy or practice of providing compensation for loss of salary occasioned by both sickness or disability" and you have run out of PTO under it.

[hr for me]

It depends on how much PTO you get each year and whether it is enough to be considered bonafide. Maybe I missed it but how many PTO days do you get per year? Many consider "bonafide" to be at least 5-6 sick days (on top of the PTO part that would be considered the old-fashioned vacation days). Your employer may not consider the PTO a bonafide sick plan.

And while it isn't a law that you can't take unpaid sick time, it could easily be a legal employer policy.

They do seem to be misinterpreting when you can deduct from an exempt salaried employee's pay. https://www.dol.gov/whd/overtime/fs17g_salary.pdf -- but only if the PTO is a bonafide plan.

But again, they can have the policy that you either make it up or take it from next year. You might consider it this way. You are going to get paid now for what you want to be unpaid so you can take PTO next year. Instead, why not save the difference and when you take unpaid next year, you pay yourself back?

[jmhecker]

Your HR department is I'm pretty sure wrong. The following is from a DOL WHD legal opinion letter from 2005.


https://www.dol.gov/whd/opinion/FLSA...24_41_FLSA.htm

It sounds as your employer has "a bona fide plan, policy or practice of providing compensation for loss of salary occasioned by both sickness or disability" and you have run out of PTO under it.

That's the thing. From what I can tell, we do not have a bona-fide plan for sick pay. In our "Employee Handbook", it states:

The PTO policy takes the place of sick, absence, personal time, and vacation.

In other words, we do not have a sick pay policy, it is all considered PTO.

[jmhecker]

It depends on how much PTO you get each year and whether it is enough to be considered bonafide. Maybe I missed it but how many PTO days do you get per year? Many consider "bonafide" to be at least 5-6 sick days (on top of the PTO part that would be considered the old-fashioned vacation days). Your employer may not consider the PTO a bonafide sick plan.

And while it isn't a law that you can't take unpaid sick time, it could easily be a legal employer policy.

They do seem to be misinterpreting when you can deduct from an exempt salaried employee's pay. https://www.dol.gov/whd/overtime/fs17g_salary.pdf -- but only if the PTO is a bonafide plan.

But again, they can have the policy that you either make it up or take it from next year. You might consider it this way. You are going to get paid now for what you want to be unpaid so you can take PTO next year. Instead, why not save the difference and when you take unpaid next year, you pay yourself back?

I believe at the start of this year I had 40 hours of PTO. Unfortunately, due to my wife having unexpected surgeries, I was forced to eat through that PTO fairly quickly and ran out of hours. Now, when I get sick, I am running into the issues that I stated in my initial post.

[hr for me]

I believe at the start of this year I had 40 hours of PTO. Unfortunately, due to my wife having unexpected surgeries, I was forced to eat through that PTO fairly quickly and ran out of hours. Now, when I get sick, I am running into the issues that I stated in my initial post.

5 days of PTO is definitely right on the line of "bonafide" sick pay plan especially when it isn't really combined with any other paid leave. If I were your employer and that were my PTO plan, I would err on the side of it NOT being a bonafide sick pay plan -- therefore I could not deduct any sick days and would require exactly what your employer is -- either you make them up or the are deducted from a future PTO bank. If they deduct you incorrectly by being wrong on bonafide, then you could file a wage claim. You really can't waive that right even if you want to... That said, that small amount of PTO sucks!

One other possibility -- are you eligible for FMLA for your wife's condition? Are there enough employees for your worksite to be covered (50 within a 75 mile radius)? Have you worked 1250 hours in the last 12 months and have you been there a full year? If so, FMLA timeoff is another allowable wage deduction for salaried exempts.

[ElleMD]

Your employer is being legally conservative and playing it safe to remain compliant. That is their prerogative.

[jmhecker]

5 days of PTO is definitely right on the line of "bonafide" sick pay plan especially when it isn't really combined with any other paid leave. If I were your employer and that were my PTO plan, I would err on the side of it NOT being a bonafide sick pay plan -- therefore I could not deduct any sick days and would require exactly what your employer is -- either you make them up or the are deducted from a future PTO bank. If they deduct you incorrectly by being wrong on bonafide, then you could file a wage claim. You really can't waive that right even if you want to... That said, that small amount of PTO sucks!

One other possibility -- are you eligible for FMLA for your wife's condition? Are there enough employees for your worksite to be covered (50 within a 75 mile radius)? Have you worked 1250 hours in the last 12 months and have you been there a full year? If so, FMLA timeoff is another allowable wage deduction for salaried exempts.

I do not qualify for any sort of FMLA, so I am not even looking into that. I was just flabbergasted that it was next to impossible to take "Unpaid time off" for being ill for a few days. It just floors me, heh.

[hr for me]

I do not qualify for any sort of FMLA, so I am not even looking into that. I was just flabbergasted that it was next to impossible to take "Unpaid time off" for being ill for a few days. It just floors me, heh.

It's a federal labor law that's meant to protect exempt employees so your employer doesn't dock your pay for every day/hour missed like they would for hourly employees (since they don't truly pay by the hour/day for exempts). I am sorry it affects you negatively. Again, all I can suggest is saving the wages for someday when you need personal timeoff and don't have any paid days left.