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TexLaw, Lawyer
Category: Employment Law
Satisfied Customers: 4430
Experience:  Contracts, Wrongful termination and discrimination
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As a salaried, exempt employee, I recently needed to take several

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As a salaried, exempt employee, I recently needed to take several days off due to severe illness. I had previously used my 5 sick days for the year. My employer used my vacation days to pay for those days, and also used a half day for the part of the first day when I was in the Emergency Department. This leaves me with no vacation days, with a previously scheduled (and paid for) vacation coming up for which I am sure they are not going to pay me. A couple of questions. Firstly, are they able to take vacation time away and use it for time I am out sick? Secondly, are they able to take half a day away for illness (and take it out of vacation time)? Thirdly, when I was taking work phone calls from the office while I was in the ED are they able to take any of that time anyway? Thank you

Thank you for your questions.

North Carolina law does not require employers to provide employees with sick leave benefits, either paid or unpaid. If an employer chooses to provide sick leave benefits, it must comply with the terms of its established policy or employment contract.

An employer in North Carolina may be required to provide an employee unpaid sick leave in accordance with the Family and Medical Leave Act or other federal laws.

Thus, here the question is whether the employer has a written policy on whether it may deduct your sick days from your vacation. The law would allow your employer to do what it has done, unless the employer has promised you that it would not do that.

The law in North Carolina heavily favors the employer in almost every situation. If your employer does not offer you paid sick days, then you can either take the vacation days to have paid time off, or you will need to take unpaid leave under the FMLA.

In regard to your employer docking your vacation days even though you were answering phone calls at the emergency room, you do have an argument that the employer owes you pay for this day, as you continued and were required to work while you were "off". Thus, technically, you were on call and were not off duty. This would be a claim you could make in small claims court, since you are an exempt employee.

Please let me know if you have further question. Please also kindly consider rating my answer positively so that I am compensated by the website for my work on your question. Rating does not cause an additional charge and will not prevent us from further discussing your questions.

Best Regards,
TexLaw and 4 other Employment Law Specialists are ready to help you
Customer: replied 4 years ago.

If the employer does not have a written policy stating it can take sick time out of vacation time in the event that the paid sick days are exceeded, is there any recourse?

The federal law in this area states the following:

Deductions from pay may be made for absences of one or more full days occasioned by sickness or disability (including work-related accidents) if the deduction is made in accordance with a bona fide plan, policy or practice of providing compensation for loss of salary occasioned by such sickness or disability. The employer is not required to pay any portion of the employee's salary for full-day absences for which the employee receives compensation under the plan, policy or practice. Deductions for such full-day absences also may be made before the employee has qualified under the plan, policy or practice, and after the employee has exhausted the leave allowance thereunder. Thus, for example, if an employer maintains a short-term disability insurance plan providing salary replacement for 12 weeks starting on the fourth day of absence, the employer may make deductions from pay for the three days of absence before the employee qualifies for benefits under the plan; for the twelve weeks in which the employee receives salary replacement benefits under the plan; and for absences after the employee has exhausted the 12 weeks of salary replacement benefits. Similarly, an employer may make deductions from pay for absences of one or more full days if salary replacement benefits are provided under a State disability insurance law or under a State workers' compensation law.

So, in summary, if the employer does not have a written policy stating that they may deduct from your vacation days for sick days which exceed the sick day leave, then it may not do so. However, it may deduct from pay for those days taken.

The recourse, again, would be to sue the employer in small claims court for the vacation days taken.

Short of that, another option would be to hire an employment lawyer to write a letter to the employer on your behalf demanding that they reinstate your vacation days.

Because you are an exempt employee, there is no state agency that will help you for free on this issue.