It’s summer, and thoughts of vacation are in the air. You shouldn’t have to worry about your job while you’re on vacation. Or should you? A recent study shows that 70% of Americans are leaving some or all of their vacation days unused because they are afraid of losing their jobs.
You’ve earned three weeks of vacation, and wow, did you
work for it. You put in for your three weeks, got it approved, and planned your
trip. You have non-refundable tickets to your dream cruise. A week before you
leave, you mention that Jane will be covering for you while you’re gone. Your
boss says, “Oh, you were serious about taking vacation?” You nod, meekly. You
ask a coworker what she thinks he meant. You find out that the last three
people who went on vacation were fired.
The short answer is:
yes. There is no law requiring an employer give you any paid vacation.
I hear stories all the time of people fired a few days
or a week into a scheduled vacation. Even worse, they’re fired the day before
they’re scheduled to leave. They were counting on the vacation pay to cover the
cost of the trip. Now they’re left in the lurch.
Vacations are good for you
and good for employers. They keep morale higher, prevent employee burnout,
reduce stress, and keep you healthier. The good news is that most employers
won’t fire you for taking your vacation.
Still, the fear of being fired for taking vacation is
justified. If you live anywhere but Montana, you’re probably an at-will
employee. That means you can be fired for any reason or no reason at all. Do
you have any rights? Yes, but not many.
Here are some circumstances where it would be illegal to
fire you for taking a vacation:
Family and Medical Leave: If you have scheduled surgery, are
pregnant with a due date, or have an immediate family member who has scheduled
medical care, you might be protected. If you put in for FMLA leave, your
employer must let you use your paid sick and vacation time first before they
put you on unpaid leave. If you’re fired because you used your vacation for
FMLA leave, you may be protected.
Contract: If your employment contract says you’re entitled to
vacation, then firing you for taking it might be breach of contract.
Employee Welfare Plan: If
the employer has an established vacation policy for all employees, then it
might be an “employee
welfare benefit plan” that is covered under ERISA. That means it might be
illegal to retaliate against you for exercising your right to take your vacation
Union contract: If your union’s collective bargaining agreement
provides for your vacation benefits, you might be able to grieve any
termination that violates your union contract.
Discrimination: The company can’t discriminate based on race, age,
sex, religion, color, national origin, disability, genetic information, or age
in granting and denying vacations. Some states have other protected categories
such as sexual orientation, marital status, and domestic violence victims. They
can favor your boss’s vacation over yours though. If the boss’s vacation
conflicts with yours, even if yours was preapproved, they can renege on the
State law: Some states provide other protections. When in doubt,
talk to a lawyer in your state about your rights.
Other than these limited
rights, you can absolutely be fired for taking your vacation or to prevent you
from getting a paid vacation. Here’s some more information you need to know
about your rights while taking vacation:
Wrongdoing discovered: If your employer discovers wrongdoing or
even poor performance while you’re on vacation, even if you have a protected
right to take it, they can fire you for the wrongdoing they discover. That
means if you embezzled and they find out because someone covered for you while
you were out, or if you didn’t do a key assignment before you left, then you
might not have a job to come back to.
Layoff: Even if you have protected vacation rights, if there is a
genuine layoff at your company, they can probably include you in the layoff.
Pay after termination: If your employer has a “use it or lose it”
vacation policy (some states prohibit “use it or lose it” vacation policies),
you probably have no right to be paid for your vacation when you’re fired.
However, if your employer lets people accrue their benefits and get paid out
when they leave, you are probably entitled to be paid your vacation time when
you leave. It’s an earned benefit.
Last minute demand to cancel: Sometimes the boss will demand you
cancel your plans at the last minute. Maybe an emergency comes up, or she just
decides she can’t live without you. If you refuse and take your vacation
anyhow, you can be fired for insubordination or job abandonment.
Should it be legal to
fire you for taking your earned vacation? No. But it probably is. The United
States is the only industrialized nation that doesn’t have a law
requiring paid vacation. One in
four Americans receives no paid vacation.
So take that trip to Europe or your dream cruise. Enjoy!
You may have more free time than you expected when you get back.
Have a general question about employment law? Want to share a story? I welcome all comments and questions. I can't give legal advice here about specific situations but will be glad to discuss general issues and try to point you in the right direction. If you need legal advice, contact an employment lawyer in your state. Remember, anything you post here will be seen publicly, and I will comment publicly on it. It will not be confidential. Govern yourself accordingly. If you want to communicate with me confidentially as Donna Ballman, Florida lawyer rather than as Donna Ballman, blogger, my firm's website is here.