Human Resource Blog

Vacation/Time Earned While on Military Leave

I have an employee who went on military leave in January 2009 and just returned in December 2009. Our PTO policy allows for 80 hours of vcation per year and she is inquiring about taking that time off, since we have a “use it or lose it” provision. It does not carry over into the new year. Is she eligible for that time, since she has been inactive for the majority of the year?

Yes, she probably is because she was on military leave. Use of PTO or paid vacation is a matter of company policy. However, federal law prohibits an employer from penalizing employees who take time off for active military duty under the USERRA regulations. Usually an employee accrues or earns PTO in the prior year — so this employee has PTO that she accrued or earned in 2008. If you do not allow her to use it, you would be penalizing her for serving her country.

To be fair, look at this from the employees point of view. She certainly has not been on vacation for the past 11 months — she may have been serving in a war zone. So naturally she needs a break. You cannot argue that her going on vacation will disrupt your business operations, because you are already operating without her.

If your PTO policy accrues time off based on hours worked, then this employee may have little earned PTO in 2010 — but that is a different topic.

Employees on active military deployment, especially members of the Reserve and National Guard, are often entitled to all benefits under USERRA. They are even entitled to promotions and raises that they would have received, if they had actively been at work. For your own protection, familiarize yourself with the USERRA regulations. Every employer should prominently display a USERRA poster, even if you have no employees who qualify.