YOUR CLIENT ADVOCATE

Paul Wilson
Benefits & Payroll | Client Advocate at OMS
pwilson@omsgroup.com

Cell # 863-860-4269
Office # 863-688-1751
Fax # 863-683-0521
26 Lake Wire Drive
Lakeland, Florida 33815
www.omsgroup.com

FREQUENTLY ASKED QUESTIONS

 

IS THERE A LIMIT ON THE NUMBER OF HOURS AN EXEMPT EMPLOYEE CAN WORK?

No, exempt employees are paid based on job duties and must be paid on a salary basis and is set
regardless of the quality or quantity of work performed. They are exempt from overtime based on the
definitions under FLSA.

CAN I CHANGE MY EXEMPT EMPLOYEE TO AN INDEPENDENT CONTRACTOR?

Moving an exempt employee to independent contractor status is possible; however, employers must be
aware that the DOL looks very closely at such arrangements, particularly with regards to attempting to
avoid offering health care. Independent contractors are just that…independent, meaning that the
employer cannot control when, where, or how much the contractor works, nor can the employer allow
them to use computers, supplies, etc. to do their work. That means if someone was required to be at
work from 9 to 5 and sit in a chair regardless of the work load, you are not an independent contractor.

DOES AN EMPLOYEE HAVE TO USE THEIR VACATION FOR FMLA LEAVE?

There is no law that forces employees to use vacation for FMLA leave, but few companies allow FMLA
leave while maintaining an employee’s vacation time. Most companies have policies in their handbooks
that state that vacation/PTO time will run concurrently with any FMLA taken.


WHAT IF AN EMPLOYEE FAILS TO CALL IN? HOW LONG BEFORE I CAN TERMINATE THEM?

Some companies have a policy of no call/no show for a first offense; however, most companies follow a
2 or 3 day concurrent no call/no show.

DO EMPLOYEES EARN PTO WHILE ON LOA?

PTO will cease to accrue (or be earned) while on LOA provided the company’s PTO policy is based on
accrued working time, such as earning 1.54 hours PTO for each week worked. It is a good practice to
state in your handbook that PTO will not accrue while on LOA. Some companies give their employees a
bank of PTO at the beginning of the year, in which case the leave will already be on the books and
cannot be taken away while someone is on leave.

CAN I FIRE AN EMPLOYEE FOR BRINGING A GUN TO WORK IF HE HAS A PERMIT?

That depends. In Florida, employees are permitted to bring a gun to work, provided they keep it locked
in the trunk of their car. Employers cannot take any adverse action toward an employee if the gun is in
the trunk, nor can an employer search an employee looking for a weapon. If the employer has a no
weapons policy and the employee brings it into the office they can be fired, regardless of whether they
have a permit or not.

WHEN CAN AN EMPLOYEE CHANGE THEIR BENEFIT PLAN?

Employee benefit plans typically run on a yearly basis and changes can usually only be done during the
open enrollment period. The exception to that is when there is a change in circumstances, such as the
birth or placement of a child, marriage/divorce, loss of spousal coverage, etc. Benefit plans will spell out
when such occurrences allow changes outside the enrollment period.

WHAT IF AN EMPLOYEE OPTS OUT OF OUR EMPLOYER BENEFIT PLAN?

If an employer offers coverage that meets the definitions of affordable and minimum value under the
Affordable Care Act, then employees may still turn down the coverage for a number of reasons: they
don’t want coverage at all – they’re covered under a spouse or family member’s plan – or they want to
choose a different kind of plan through the marketplace or elsewhere. As long as you, as an employer,
offered coverage that is affordable and has minimum value – then the responsibility falls to your
employee to be covered under the Individual Mandate regulation.

WHEN CAN I ASK FOR A DOCTOR’S NOTE?

Employers can ask employees to provide a doctor’s note for absences due to illness. Even if the
company does not normally require a doctor’s note, it can impose the requirement for suspicious
circumstances, such as calling in sick on the same day a request for vacation was denied. However, the
note should only verify that the employee had a visit on a particular day. It should not contain medical
information or a diagnosis, since requesting that information is likely to be an unlawful medical inquiry
under the Americans with Disabilities Act (that is, a request that is not job-related and consistent with
business necessity).

WHO IS CONSIDERED A SMALL EMPLOYER UNDER THE ACA?

Employers with 50 or fewer full time equivalent employees would fall in the small business category.
Small businesses are exempt from penalties (known as Shared Responsibility Payment or pay or play)
faced by larger employers who do not offer coverage.

WHEN WILL AN EMPLOYER LOSE THEIR GRANDFATHERED STATUS?

Grandfathered status under the ACA is given to health plans in existence prior to March 23, 2010, that
do not make any major changes to its provisions. Grandfathered plans must still adhere to most of the
requirements under ACA; however, going forward they are not allowed to make major changes to the
plan, such as raising the cost sharing provision to more than the cost of inflation, dropping coverages for
certain conditions, or adding or reducing annual limits, etc. Once they do that, the plan will lose its
grandfather status and will have to comply with other more stringent regulations.