Tuesday, November 29, 2022

Don’t Deny Vacation Due to Recent Use of COVID Sick Leave

My employee used most of her COVID-19 Supplemental Paid Sick Leave over the last couple of weeks. Now she wants to take a week’s vacation. Can I deny the vacation request since several other employees in that department, who have been working lots of extra hours to cover her missed shifts, also want to take that same week off?

Denying your employee’s vacation request because she has been absent a lot lately using her California COVID-19 Supplemental Paid Sick Leave (CSPSL) could result in a claim that you are retaliating against her for using that protected leave.

Employees who use CSPSL are protected from retaliation under Labor Code Section 246.5(c), which prohibits an employer from discriminating in any manner against an employee for using those COVID-related sick days.

Look to Employee Handbook

In this instance, the employer should look to whatever regular policy it has in place for determining which vacation requests to approve. It should first consider any employee handbook that is in place to determine how vacation requests are prioritized, if that is covered in the handbook.

Many employers use a seniority system, with more senior employees having priority. Other employers may approve vacation requests based on a “first come, first served” basis, meaning whoever turned in their request first has priority.

There might also be a system in place where a manager must determine which positions have sufficient coverage based on business needs at that time to approve a vacation request.

If the handbook policy provides guidance, then the employer should use that system and not use the employee’s recent use of CSPSL as a factor in making a decision.

Past Practice

If the employee handbook does not specify how vacation requests are considered, then the employer should look to its past practice for guidance. Staying consistent with past practice in how vacation requests are given priority (assuming that practice relies on legitimate and nondiscriminatory factors) may negate the employee’s claim that there was retaliation for exercising her legal right to use CSPSL.

If there is an established nondiscriminatory practice, then the employer should use that system and not consider the employee’s recent use of CSPSL as a factor in making a decision.

Be Fair

Finally, if there is no written policy and no past practice, the employer should find a fair way to decide which vacation requests to approve without taking into account the employee’s recent protected COVID-related absences.

Whatever method the employer chooses would then become the company precedent for similar situations in the future.

Column based on questions asked by callers on the Labor Law Helpline, a service to California Chamber of Commerce preferred and executive members. For expert explanations of labor laws and Cal/OSHA regulations, not legal counsel for specific situations, call (800) 348-2262 or submit your question at www.hrcalifornia.com.

Ellen Savage
Ellen Savage
Ellen Savage joined the CalChamber in 1990 and currently serves as an HR adviser. She has been assisting employers on the Helpline since 1993. She was the editor of eight editions of the California Labor Law Digest and author of the CalChamber's California Hiring to Termination Guide. Her experience also includes practicing at a large Sacramento law firm and presenting at dozens of employment law seminars statewide. She holds a J.D. from Lincoln Law School.

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