FIRED FOR USING PAID TIME OFF (PTO, SICK, VACATION)

Employees in California should not be fired for using accrued, paid time off. However, there are exceptions. For example, unpredictable attendance is generally a problem. If you were fired because you missed work due to illness, but you had enough accrued sick pay to cover the period of illness you might have a wrongful termination case. If you were fired when you had vacation pay available, but were out for medical reasons that also presents the appearance of probable wrongful termination, and maybe violation of laws such as FMLA if you had a qualifying serious medical condition for which you treated with a doctor more than twice. However, the use of one vacation day a week for a period of months may cause disruption an employer claims they cannot accommodate. The fact patterns, circumstances for you missing work, and potential labor laws that may apply cause our best legal advice to be call us at 877-525-0700 so we can get into the specifics. The specifics matter.

The specifics on sick leave accrual also matter. Part-time employees do accrue sick leave in California. For every 30 hours they work, they accrue one hour of sick time up to 5 full days in a year. Full-time employees have different accrual rates. Employers may also have rules about sick pay, PTO, and vacation accrual whereby all pay is given at a certain time during the year or it is combined. These rules are legal as long as you are receiving the minimum amount of sick pay required by law. If you are considering bringing a lawsuit because you had accrued sick time, but were fired anyway it would be helpful to find your paystubs or documents that show the accrued sick pay. Those documents will be useful to our employment lawyers.

To read about additional leaves of absence, and understand the specifics of various California leaves of absence, CLICK HERE

DO EMPLOYERS HAVE TO PAY PTO, SICK PAY, AND VACATION PAY WHEN THE EMPLOYEE LEAVES THE COMPANY?

Sick pay does not have to be paid when an employee leaves their employer. Unused sick pay is forfeited. Unused vacation pay and PTO is not forfeited. The failure to payout vacation/PTO pay can result in California Labor Code Section 203 penalties. These penalties are one day of pay, including applicable benefits and bonuses, for up to 30 days. These penalties are not automatic. There are defenses an employer can bring such as their failure to pay out the money was a good faith mistake. Every week our law firm receives quite a few phone calls at 877-525-0700 about vacation and PTO simply never paid out. Unfortunately, we also receive many phone calls about final wages not paid out.

CAN AN EMPLOYER DENY AN UNPAID LEAVE?

It is important to contact our law firm directly if you were on an approved leave of absence and were fired. Many FMLA, cancer, disability, and pregnancy leaves are unpaid (at least by a certain point). Employers cannot fire employees over those kind of leaves.

Employers commonly make mistakes about leave durations, do not properly enter doctor’s notes into their system, and misconstrue the various California leave laws. Again, the facts matter. Employers can fire employees if they require leaves beyond what the law requires, if there is no probable return date at a certain point, or the medical condition does not provide the leave coverage an employee needs. Just because an employer has agreed an employee is on leave does not end the inquiry. Leave laws are very complex. It is important that you speak to a qualified California Leave Law attorney to find out if you have a case. Call us at 877-525-0700. Finally, if an employee is on an unpaid leave not due to a protected medical condition or work injury there may not be a legal duty for the employer to hold the job open.

Employees who have read this article, and are not ready to contact our law firm, might find the following legal citations useful if they want to do more research on their own:

• California Government Code Section 12945 (pregnancy disability/maternity leave)
• California Government Code Section 12945.2 (FMLA)
• California Labor Code Section 233 (sick leave)
• Naranjo v. Spectrum, 15 Cal. 5th 1056 (2024) (late pay law explained)