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Joseph
Joseph, Lawyer
Category: California Employment Law
Satisfied Customers: 4863
Experience:  Extensive experience representing employees and management
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I was recently hospitalized with pneumonia and am now returning

Resolved Question:

I was recently hospitalized with pneumonia and am now returning to work for 1.5 weeks of modified duty. My employer refused to allow me to work for the first 2 days, stating that I needed a note from my doctor to do so. There is absolutely no written policy about this in my company. My doctor prescribed light duty for the first week and a half. My company has decided that they will only pay me for 2 hours per day for light duty work and that I must use my PTO for the remaining 6 hours. Can they do this? Do I not have the right to work a full 8 hours day with modified duties? Can they force me to use my PTO?
Submitted: 11 months ago.
Category: California Employment Law
Expert:  Joseph replied 11 months ago.
Hello and welcome to JustAnswer.

I'm sorry to hear about your situation and hope I can help.

My goal is to provide you with excellent service today.

Before I can answer your question, I do need some additional information from you.

Can you tell me if you are an at-will employee or do you have an employment contract with your employer, or are you a member of a union?

Also, can you tell me if you are an hourly or a salaried employee?
Customer: replied 11 months ago.

Hi-


 


Well, we are all at will employees, but we were asked to sign a contract...which I never signed. I am a salaried employee. No union.


 

Customer: replied 11 months ago.

Yep. My contract states that my employment is at will. Just confirmed.

Expert:  Joseph replied 11 months ago.
Hello Sherry,

Since you are a salaried employee, if you perform any work during a day then you are entitled to your full salary for that day. So if you work a minute, 2 hours, or 8 hours in a day, you are entitled to your entire salary, so your employer cannot compel you to use your paid time off, since you are entitled to your salary for performing any work during the day.

Unfortunately, since pneumonia is a temporary condition it does not qualify as a disability under the Fair Employment and Housing Act or Americans with Disabilities Act, so you won't be able to claim discrimination, but you'd definitely have a wage claim against your employer.

If you refuse to use your paid time off, and your employer refuses to pay you for that time, you will definitely have a valid wage claim against your employer since you are entitled to your full salary as long as you perform ANY work in a day.

Since there is no written policy, your employer would also be violating the law by requiring you to use PTO (taking deductions from your PTO without your consent), and you would also have a wage claim against the employer if they deduct from your PTO as long as you are performing ANY work during the day.

Please see this article for more information:

http://www.shrm.org/TemplatesTools/hrqa/Pages/Californiapartial-dayabsences.aspx


Please let me know if you have any follow up or clarifying questions.

If not, please remember to rate my answer positively so I get credit for my work.

Thanks and best of luck!
Joseph, Lawyer
Satisfied Customers: 4863
Experience: Extensive experience representing employees and management
Joseph and other California Employment Law Specialists are ready to help you
Customer: replied 11 months ago.

Hi


 


So, since I've been released to work with light duty requirements, is my employer required to provide me with full time modified work? Or can they limit the time that I'm allowed to work (i.e., 2 hrs per day)? I guess what you're also saying is regardless, even if they only want me to work 2 hours per day, they still have to pay me?


 


 

Expert:  Joseph replied 11 months ago.
Hello Sherry,

Yes, even if you only work two hours a day they still have to pay you at your normal rate. So, while they can restrict your duty (since pneumonia isn't covered under the ADA or Fair Employment and Housing Act) they still have to pay you the same amount whether you work two or eight hours in a day.

For that reason, it is definitely in their best interest to give you eight hours of work per day of light duty, but you are entitled to be paid the same regardless.
Customer: replied 11 months ago.

Ok. Thanks. XXXXX need to take legal action, is this something I can do with you, or do I look elsewhere?


 


Any chance you can give me the California code number regarding this? I've told my employer all you've said to me and they're still saying they'll only pay me for 2 hrs a day and the rest PTO. I can't open the article you mentioned in your first response because I'm not a member of that site. Thanks so much for your help.


 


s


 

Expert:  Joseph replied 11 months ago.
I didn't get your follow up until right now, since the website sometimes has issues with notifying experts of additional questions after a customer has rated an answer.

Unfortunately, JustAnswer experts cannot represent customers, so this is something that you would need to look for elsewhere.

I can give you a few sites as starting points, but I would actually recommend that you file a wage claim, since there is no cost and no attorney's fees.

Here are some sites:

www.lawyers.com

www.avvo.com

www.martindale.com

Here is the site for filing a wage claim:

http://www.dir.ca.gov/dlse/howtofilewageclaim.htm

The link is strange, since it works when you get it through google, but not when you just enter the site address. Here is the google link (it's the first entry that comes up):

https://www.google.com/search?q=california+exept+employees+partial+day&oq=california+exept+empl oyees+partial+day&aqs=chrome.0.69i57j0l3j69i60j69i61.10757j0&sourceid=chrome&ie=UTF-8#bav=on.2,or.r_cp.r_qf.&ei=m6gCUoe-KYG9yAGmjoDYDQ&fp=c0b56d4f4115cc9b&q=california+exempt+employees+partial+day&sa=X&safe=off&spell=1&ved=0CCsQvwUoAA


There is actually no directly applicable code section that governs this, but there is an opinion letter from the Department of Labor Standards Enforcement (from the Department of Industrial Relations) that governs the issue.

It is here:

http://www.dir.ca.gov/dlse/opinions/2009-11-23.pdf

Hope this additional information helps!

Again, please don't hesitate to ask me any follow up or clarifying questions.


Expert:  Joseph replied 11 months ago.
The letter confirms that a 'bona fide plan' is necessary for an employer to make any deductions from sick and vacation time for partial day absences.

Since you stated that there is no plan in place, your employer is obligated to give you your full salary, and is violating the law by deducting from your vacation and paid sick time off for partial day absences.

You should file a wage claim against your employer if it insists on deducting your PTO for partial days despite not having a bona fide plan in place that states this.
Expert:  Joseph replied 11 months ago.
Hello Sherry,

Thank you for your positive rating of my service, Sherry. It has been my pleasure to assist you and I hope than you will ask for me on JustAnswer should you have future legal questions.

Please request me directly by placing “to Joseph” at the beginning of your question and/or requesting me directly in California Employment Law.

When you receive your Customer Satisfaction Survey from JustAnswer, please do rate me highly (9-10) there as well. It benefits my ability to assist you and other customers, and would be tremendously appreciated.

Thanks again and best of luck,

Joseph

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