By: Brad Nakase, Attorney
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It’s December, and the holidays are approaching in Southern California. Travis is excited. He bought his fir tree, his lights, his booze, and is looking forward to taking time off the week before Christmas to enjoy the season. He has already made plans to visit his parents and drink Baileys in the company of his cat, Pickles. However, when Travis submits his request for time-off to his employer at Walmart, he is shocked to find it denied. When he asks for the reason, his employer explains that because the holiday season is so busy at Walmart, Travis is needed at work. Furious, Travis wonders whether his employer has the right to deny his vacation request.
Under California law, an employer can indeed deny an employee’s request for time off. The time off may fall under vacation time, paid time off (PTO), or sick time. Believe it or not, paid vacation time, or sick time, is not a legal requirement in most parts of the United States. Therefore, your employer does not have to accept your request, and may deny it with no legal consequences.
Laws regarding vacation and sick time do vary, however, based on the state in which one lives. States like Maryland, Michigan, Maine, Nevada, and New Jersey by law require employers to give workers paid sick time. It’s rarer for states to require employers provide vacation time beyond sick leave.
On a federal level, employers are required to provide sick leave that falls under the Family Medical Leave Act (FMLA). Laws like the FMLA protect an employee from being fired while ill or caring for an ill family member. Of course, and employee must meet the qualifications for FMLA in order to receive the sick leave.
When it comes to requesting time off for the holidays, there are few protections. Technically, one may be able to get some time off if he or she observes legitimate religious customs. Employers normally must provide time off to employees with religious obligations – a rule relevant during the holiday season.
If a paid time off, or vacation, request is denied, the employee still has a few options. If the employee wishes to take time off at the holidays for religious reasons, he or she may raise this issue with their employer. The employer may be required to accommodate this request. An employee may also offer to work a different shift or come in part-time during the holidays.
That said, unless an employee lives in a state with protections regarding paid time off, an employer can require an employee to be at work, even over the holidays. If an employee decides to simply not show up for work, he or she may be legally disciplined or terminated.
An employee may be tempted to call in sick on a holiday. However, his or her employer is allowed to ask for proof of illness, such as a doctor’s note.
If an employee is adamant about taking time off, and is not willing to work, he or she has the right not to appear. In the same way an employer can terminate employment for any reason, an employee can quit for any reason. There is no need to be concerned about that two-week notice. While a courtesy, a two-week notice is not legally enforceable, so you may quit at any time without notice.
To refer to our example above, Travis is not entitled to any time off. However, if he is determined to take his vacation with Pickles the Cat, he may try to negotiate with his boss. Perhaps he offers to work an extra shift two weeks prior to the holidays. But let’s imagine his boss rejects this offer. Travis decides to quit his job at Walmart on the spot. His boss asks for his two-week notice. Knowing his rights, Travis declines to give it, and he goes home to enjoy his holiday season with Pickles.
Technically, an employer can fire an employee for any reason. That said, if the employer’s company has a specific PTO policy, then terminating an employee for using his or her PTO can open the door to a lawsuit.
In certain circumstances, it is possible for an employer to legally fire an employee for taking PTO. For example, an employee may be terminated if he or she does not follow the appropriate procedure for requesting vacation. He or she may also be fired for not properly managing his or her workload during the absence.
An employee may use his or her PTO during a two-week notice. However, an employer may legally deny the request, as at any other time.
It is important to know that some employers have policies that require them to pay an employee for any unused PTO time. Therefore, if PTO time has been denied, it may be worth getting that payout when leaving the job.
A blackout period is a stretch of time during which an employer bans employees from taking time off. An example of this is the holiday season, when employers often need all hands on deck for a busy time of the year. Under the law, blackout dates are legal.
If, however, one has a religious reason for not working on a holiday, one may request a religious accommodation.
It is legal for an employer to ask why an employee is requesting time off. In fact, it is a typical part of filling out a Leave of Absence Form. While an employee does not have to answer this question, he or she may be required to if the reason affects the business. For instance, an employer should know about extended medical leave, such as that provided under the FMLA.
In general, an employee is required to provide basic information about his or her time off:
