Employment Law Questions? Ask an Employment Lawyer.
That is completely up to the company to make this decision regarding whether or not the 45 hours can be considered when taking FMLA so you are not docked any pay for it (that is what you are asking, correct?). The FMLA law permits you to take intermittent leave -- an hour or two a week is fine if a doctor certifies that it is for a personal illness or the serious illness of an immediate family member -- but FMLA does not get into the actual specifics of how your employer will work the pay issue and they are free to simply continue to pay you the 40 hours if you can demonstrate to them that you regularly work 45 hours per week and they are willing to do it -- or your employer may stick to the 40 hour salary workweek and still dock your pay that hour or so every week if they choose to do so. If you have sick time you are permitted under FMLA to take that time for the FMLA time also -- so if they turn down your request based on the 45 hours workweek and you have sick time you can ask to use the sick time to make up for the few hours a month that you will need to take off.
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I am saying that if your salary is based on a 40 hour workweek and you take an hour off for FMLA each week, they can pay your for 39 hours if they choose to do so. Then, if you are saying that you regularly work 45 hours and that if you take one hour FMLA leave a week then the company should not take away from your pay at all because you are already working OVER the 40 hours and you are on salary -- that would be up to the company whether or not to take the hour out of your pay when you say you regularly work 45 hours and not 40.
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