Employing the Absentee Employee – Employee Vacations, Sick Time and PTO
June 19, 2014
Karen L. Gabler

Photo: Karen L. GablerWith the onset of summer, employee absence is on the rise. California has strict legal requirements regarding vacation, sick and paid time off (“PTO”) policies, with burdensome penalty provisions for minor mistakes. Here are the top five tips to avoid potential liability:

  1. Employees may use available PTO without discipline. Employees are entitled to use accrued PTO. Employers may reschedule the absence for business purposes, but cannot discipline employees for using accrued PTO unless there is a pattern of abuse.
  2. Employers don’t have to advance PTO or grant unpaid PTO. If an employee wants a vacation day but has no accrued time, the employer can deny the request. If the employee uses all available sick days and is still regularly absent (without a disability), the employee can be terminated for excessive absence.
  3. Employers can’t deduct a negative PTO balance from the employee’s final paycheck. The employer can require an employee to pay back a negative PTO balance upon termination, but will be subject to late pay penalties if it is unilaterally deducted from the final paycheck.
  4. PTO and vacation can’t be “use it or lose it” (sick time can!). Paid vacation and combined PTO must be accrued and carried over to at least 1.50 times the annual accrual amount, and must be paid out at termination. A separate sick time policy can be “use it or lose it.”
  5. If the employee wants PTO for a work-related or personal disability, the employer must consider mandatory leaves of absence. Disability situations lead to the most common (and most costly!) lawsuits. If your employee has a disability, consult with qualified employment counsel to document legally-mandated leaves and the employer’s obligation to reasonably accommodate the disability.

For further questions regarding vacation, sick and PTO policies, or to discuss a disability situation, contact Karen Gabler (www.lightgablerlaw.com).

Karen Gabler is an employment law attorney with LightGabler. She provides employment law advice and handles employment-related disputes for employers and managers in companies of all sizes and industries.