PTO Cancellation

[Chipan]

Jurisdiction

California

So I work for a large international company in California. In my workplace we have 4 techs in a warehouse. One takes Sun-Thurs first shift, two take Mon-Fri first shift and I take Mon-Fri second shift. Near the beginning of the year I scheduled PTO for the second and third full weeks of December. Because I'm the newest member of the team (I've been here for 2 years) I got last pick of the time, and our boss doesn't allow more than two technicians to be off at any given time so both shifts can be covered. As such, one tech got the last two weeks and another got the last week booked before I submitted my time for the second and third weeks. My time was approved. The last tech chooses not to take holiday time except 11/20 through 12/8.

A few weeks ago the tech who was going to take the last week off left the company. With his absence the manager is concerned about coverage for the third week of December where my PTO overlaps with the tech taking off the last 2 weeks of December. He may not be able to fill the position before the holidays arrive, and the manager heavily implied that I may have to come in that week if he doesn't get someone new who's about to work by then. The problem is I have a trip planned with plane tickets, rental vehicle, and Airbnb all booked. Having to come in that week would essentially mean I have to cancel my whole family Christmas trip.

As such, I'm looking into what I could do in this contingency where my manager wants to cancel my PTO. The first thing of course I would try to do is convince him not to, but if this fails I was thinking of taking it up with HR. I'm not sure if that would do much good because I don't think canceling my PTO isn't illegal or technically against policy since managers have discretion to approve or deny PTO based on coverage needs.

The last resort I thought of is to take the time off anyways unscheduled. It is fortunate that this year I have only taken off scheduled PTO. As such I have 24 hours of paid sick leave as required by CA state law, and the policy considers this time approved de facto, meaning the manager doesn't have to approve it. In addition, I found that once per calendar year employees can take up to 24 hours of unscheduled PTO before it is counted against them in the attendance policy. They gives me potentially 48 hours of time I can take off this year before I can be disciplined for being absent. The only potential concern I see with this is that they say if you're gone for at least three consecutive days that you need a doctor's note, but it may or may not be easy to get a doctor to sign off on 5 mental health days.

Now I don't want to go with that last option if I don't have to, but I'm wondering if there are any other options I should consider? As of now my PTO is still in approved status, but I do want to be prepared in the event that it gets revoked.

 

[adjusterjack]

The problem is I have a trip planned with plane tickets, rental vehicle, and Airbnb all booked. Having to come in that week would essentially mean I have to cancel my whole family Christmas trip.

Did you buy trip cancellation insurance?

 

[cbg]

Although California is the only state that cares even minimally about how PTO is managed while you're still employed (a number of states care about how it's handled when you leave) as I have said before, even California doesn't care much. This is going to be mostly a company policy issue. I don't know your employer, your HR or how any of the suggestions you offered would be handled, but there is NO option available to you that will protect both your PTO and your job. IF it should happen that your PTO is revoked and you take it anyway using any of the options you've presented, or any others you might alternately come up with, it will be entirely legal under both Federal and California law if you are fired. I don't know if they will, but they can, and they can make it stick. Just a warning.

 

[welkin]

The longer you wait to work it out with your manager, the more it will cost you in cancelation fees.

You might want to point that out to your manager and get an answer ASAP.

You can always try to get one of the other techs to cover your PTO and are will to do it if your manager will allow it.

 

[Chipan]

Concerning where the law is concerned I have found a few things. For one, I have found that the employer can be held liable for out-of-pocket expenses incurred by their employee as a result of the cancellation of their approved PTO. This generally doesn't fall under employment law, but since the damages are foreseeable with respect to the act of PTO cancellation, in particular when the employer is informed in advance that travel will occur, they can be held liable for said damages.

As for the contingency plan to go anyways, I believe it would have more protections because the duration would not be entirely PTO. Part of it would be California paid sick leave, which does have protections of afforded to it by California law. What's needed is a coverage of five working days, and that coverage would be met by 2 days of unscheduled PTO and three days of California paid sick leave. By California law paid sick leave must be approved by the employer upon employee spoken or written request and cannot be conditioned upon a written doctor's note.

By the attendance policy I am afforded up to 24 hours of unscheduled PTO usable within the calendar year before disciplinary action can take place under the attendance policy. Since all the time I've taken off was scheduled, I still have these available to me. Per policy two days can be taken off without a doctor's note, and this would use 16 hours of unscheduled PTO. In addition to this I have 24 hours of California paid sick leave, and although her policy I must have a doctor's note to take off three consecutive days, by law my paid sick leave cannot be conditioned upon a doctor's note.

For context, although I don't have a union job there is some red tape concerning the firing process. For example, a manager wanted to fire their employee for taking unscheduled days off exceeding their PTO allowance. They gave her two warnings, a final warning and then a final final warning. She's still there.

And for an update, today my manager gave a more firm verbal answer that I will have to cover that week. I told him that I will not be able to cover due to my obligations and it would put great financial and personal expenses upon myself (he knows I'm traveling). He was undeterred and basically said it is what it is and I can take it up with HR if I want. I'm currently going through HR. Last week I talked to my rep and she assured me that there ought to be alternative solutions and said she has my back. I'm soon going to follow up given the progress of the situation. In the system my PTO remains in an approved status, although I suspect he may cancel it soon.

 

[Chipan]

Final update. I may have been wrong about how clear the law is on paid sick leave. It says that employers must grant sick leave upon request which suggest they cannot apply conditions of approval, but this may be unsettled law in the courts.

All this is moot though because my HR rep convinced him not to go through with it. I got a text from my manager saying they will manage the situation and to just enjoy my vacation.

 

[welkin]

Fantastic! Enjoy your trip.

 

[Zigner]

Final update. I may have been wrong about how clear the law is on paid sick leave. It says that employers must grant sick leave upon request ...

Do you have a citation to back up that assertion?

 

[Chipan]

Do you have a citation to back up that assertion?

Sure. California Labor Code section 246.5(c). "An employer shall not deny an employee the right to use accrued sick days, discharge, threaten to discharge, demote, suspend, or in any manner discriminate against an employee for using accrued sick days..."

Also section a:
"Upon the oral or written request of an employee, an employer shall provide paid sick days"

 

[cbg]

I'm willing to bet that somewhere in there, there is a qualifier that the employee actually has to be sick to use them. I seriously doubt that the CA legislature intended these days to be a forced-by-the-employee extension of vacation time.

 

[Zigner]

Sure. California Labor Code section 246.5(c). "An employer shall not deny an employee the right to use accrued sick days, discharge, threaten to discharge, demote, suspend, or in any manner discriminate against an employee for using accrued sick days..."

Also section a:
"Upon the oral or written request of an employee, an employer shall provide paid sick days"

It doesn't help you to cherry-pick. The law only applies for (1) Diagnosis, care, or treatment of an existing health condition of, or preventive care for, an employee or an employee's family member and (2) For an employee who is a victim of domestic violence, sexual assault, or stalking, the purposes described in subdivision (c) of Section 230 and subdivision (a) of Section 230.1. In other words, your vacation can't be used as "sick days" according to the code section you cited.


Law section

(a) Upon the oral or written request of an employee, an employer shall provide paid sick days for the following purposes:

(1) Diagnosis, care, or treatment of an existing health condition of, or preventive care for, an employee or an employee's family member.

(2) For an employee who is a victim of domestic violence, sexual assault, or stalking, the purposes described in subdivision (c) of Section 230 and subdivision (a) of Section 230.1.

(b) An employer shall not require as a condition of using paid sick days that the employee search for or find a replacement worker to cover the days during which the employee uses paid sick days.

(c) (1) An employer shall not deny an employee the right to use accrued sick days, discharge, threaten to discharge, demote, suspend, or in any manner discriminate against an employee for using accrued sick days, attempting to exercise the right to use accrued sick days, filing a complaint with the department or alleging a violation of this article, cooperating in an investigation or prosecution of an alleged violation of this article, or opposing any policy or practice or act that is prohibited by this article.

(2) There shall be a rebuttable presumption of unlawful retaliation if an employer denies an employee the right to use accrued sick days, discharges, threatens to discharge, demotes, suspends, or in any manner discriminates against an employee within 30 days of any of the following:

(A) The filing of a complaint by the employee with the Labor Commissioner or alleging a violation of this article.

(B) The cooperation of an employee with an investigation or prosecution of an alleged violation of this article.

(C) Opposition by the employee to a policy, practice, or act that is prohibited by this article.

 

[Chipan]

I'm willing to bet that somewhere in there, there is a qualifier that the employee actually has to be sick to use them. I seriously doubt that the CA legislature intended these days to be a forced-by-the-employee extension of vacation time.

Correct. The employee may only use PSL for purposes specified on the section. But the employer must grant it upon request. Say there are two scenarios.

A. I call in asking for PSL. Employer asks "what reason do you have?" I say "because I'm sick." They say "ok, granted."

B. I call in asking for PSL. Employer asks "what reason do you have?" I say "because I'm sick." They say "well you need to bring a doctor's note."

In A they have granted me PSL upon request while in B they added a condition of approval, thus not granting it upon request. There is nothing in there which says the employer can provide conditions of approval for the purpose of verification of compliance. What it says is it must be granted upon request.

 

[army judge]

Correct. The employee may only use PSL for purposes specified on the section. But the employer must grant it upon request. Say there are two scenarios.

A. I call in asking for PSL. Employer asks "what reason do you have?" I say "because I'm sick." They say "ok, granted."

B. I call in asking for PSL. Employer asks "what reason do you have?" I say "because I'm sick." They say "well you need to bring a doctor's note."

In A they have granted me PSL upon request while in B they added a condition of approval, thus not granting it upon request. There is nothing in there which says the employer can provide conditions of approval for the purpose of verification of compliance. What it says is it must be granted upon request.

My pitiful one cent addition.

If you poke the bear, eventually the bear will attack you, potentially devouring you.

The bear fears little, if anything.

Its never wise to anger your employer, because in doing so, you'll reap more trouble than any relief or respite you desire to gain.

 

[Chipan]

My pitiful one cent addition.

If you poke the bear, eventually the bear will attack you, potentially devouring you.

The bear fears little, if anything.

Its never wise to anger your employer, because in doing so, you'll reap more trouble than any relief or respite you desire to gain.

I agree, which is why I was very conflicted with this option. Fortunately it was resolved by HR instead.

 

[cbg]

Correct. The employee may only use PSL for purposes specified on the section. But the employer must grant it upon request. Say there are two scenarios.

A. I call in asking for PSL. Employer asks "what reason do you have?" I say "because I'm sick." They say "ok, granted."

B. I call in asking for PSL. Employer asks "what reason do you have?" I say "because I'm sick." They say "well you need to bring a doctor's note."

In A they have granted me PSL upon request while in B they added a condition of approval, thus not granting it upon request. There is nothing in there which says the employer can provide conditions of approval for the purpose of verification of compliance. What it says is it must be granted upon request.

In other words, you're prepared to lie and cheat to get your own way.

 

[Chipan]

In other words, you're prepared to lie and cheat to get your own way.

It was just a consideration, but honestly if a company is unwilling to honor their promises what do I owe them? I'm not talking about doing this in response to being denied PTO, I'm talking about doing this in response to my approved PTO being revoked. If you don't think that's wrong I don't know what to tell you.

At any rate I was only considering legal implications of this. Perhaps you might say it's ill-advised because if they ever found out the reasons I gave were false it would be a good reason to fire me. But I'm not concerned with your attempt at a guilt trip.

And at any rate this is all purely hypothetical because the issue has been resolved.

 

[Zigner]

I'm glad it's been resolved.

 

[hrforme]

Glad it's resolved, but I can tell you that IF you played the "sick" card, that it WOULD be remembered later on promotions, pay increases, next year's approval, etc. evn IF they had to approve it under the law.

 

[Chipan]

Glad it's resolved, but I can tell you that IF you played the "sick" card, that it WOULD be remembered later on promotions, pay increases, next year's approval, etc. evn IF they had to approve it under the law.

That is a valid consideration, which is one of the reasons I was leaving against that option.

 

[cbg]

Do I approve of revoking approved PTO? No.

Is there sometimes a business necessity for it? Yes.