Human Resource Blog

Forced to use PTO time?

Is an employer allowed to force an employee to use their PTO time to make up lost time, if the employee doesn’t want to be paid for the time off? I thought that PTO was to be used as the employee saw fit.

In most cases, an employer can set whatever rules they want to regarding paid time off.

There are very few state or federal laws concerning the use of Paid Time Off, or PTO. That’s because neither state nor federal law requires that employers offer paid vacations, paid sick leave, personal days or other forms of paid time off.

There are three exceptions here: discrimination, FMLA and ADA.

An employer cannot implement any employment policy that discriminates against workers based on race, color, religion, sex or national origin. Nor can an employer discriminate against workers who are over 40, or disabled. So if an employer required all workers over 40 to use PTO whenever they were absent, but did not require workers under 40 to do so, that would be illegal discrimination. The federal anti-discrimination laws include Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act and the Americans with Disabilities Act of 1990.

The second exception occurs under FMLA, the Family Medical Leave Act of 1993. FMLA permits employees to take unpaid leave under some circumstances. This includes situations where the employee has a serious health condition that requires medical care. It also includes time off to bond with a new baby, a newly adopted baby or a newly placed foster child. In addition, an employee can take time off under FMLA to care for an immediate family member with a serious health condition. The employer has the right to require that a healthcare professional certify the “serious health condition.”

In general, an employee who is planning to use FMLA leave should inform the employer as soon as possible – within 2 days after her return to work, at the latest.

Under some circumstances, unpaid time off can be considered a “reasonable accommodation” under the Americans with Disabilities Act, or ADA.

What if none of those situations apply? For example, what if the employee does not have a serious health condition, but just wants time off. There is no law that requires employers to give paid or unpaid time off to a worker who merely wants a day to run personal errands, have furniture delivered, or just have fun.

In fact, using PTO might be the better alternative in this situation. An employer has every right to discipline and even fire an employee who takes unscheduled, unpaid time off.