Taking Vacation Time from Work: What Are Your Rights?

There is no general right to take vacations in the United States. Put it another way, there is no federal or state law requiring your boss to allow you vacation time—paid or unpaid.

Since it is voluntary for employers to provide vacation as a benefit, employers have considerable (in some states, effectively total) discretion to set the rules for vacation.

What does that mean in practice?

First, employers can determine how many vacation days employees receive—and they do not have to give the name number of days to all employees. The amount of vacation employees receive can vary by job, by seniority, by worksite or location—even by employees (an employee whom the employer really wanted to hire may be able to negotiate additional vacation days). And, as stated, employers can determine whether employees receive vacation days at all—it is perfectly legal to not offer employees any vacation.

Second, employers determine how days are earned or accrued. Do you get them all at once for the whole year, on January 1st? Or do you accrue them monthly or based on number of hours worked? (E.g. if you get 8 days per year, do you earn them at the rate of 1 every month-and-a-half?) However, companies can set a waiting period at the time of hire before vacation time kicks in.

Third, employers can determine whether you can get an “advance” or “loan” of vacation days. That is, say that it is March and you’ve only earned three days so far this year, but you want to take a week off in early April. The employer is not required to let you borrow from future days, but could let you do so if it wanted. And if you can borrow from future days, what happens if you leave work before earning those days—do you have to repay the employer the value of those days? The answer is “maybe”—it depends on what the employer’s workplace policy says.

Fourth, the employer can decide whether you can roll over unused days from one year to another, and if so, how many can be carried over—or whether each year, you must use your vacation that year or lose it. Some states, however, do not recognize the “use it or lose it” vacation policy, so check out your state’s relevant laws. Also keep in mind, companies can cap vacation accruals: that is, they can let you accrue only so many days at a time and no more.

Fifth, regarding vacation scheduling, employers can decide when employees may take vacations. An employee does not have an absolute right to take vacation whenever he or she wants. Instead, the employee can only take vacation when the employer allows him or her to do so. Moreover, employers are allowed to consider other factors in deciding whether to let an employee take vacation or not, such as overall staffing level, work flow, any particular projects or deadlines, whether there is a busy season (“blackout days”), and how many other employees have requested vacations for the same time. The employer cannot indefinitely prevent employees from using their vacations, but can prohibit them from doing so when it would be detrimental to the business.

Several exceptions do exist

As stated, as common as vacation is as a benefit, employers are not required to provide any paid vacation or part time off. Since it’s voluntary on the part of employers, they can generally set the rules about using it. However, there are a few limitations on employer discretion:

• If there is an employment contract or a union agreement that specifies how employees may use their vacation days, the employer must comply with the contract’s terms. For example, if a contract gives employees the right to take vacation at will (or so long as enough notice is given to the employer), the employer must let them do that.

• If there is a strong written policy, such as contained in an employee handbook, which sets forth the rules about vacations, that policy may be considered to effectively create an enforceable contract. It depends on exactly what the policy says and how definitive it is (or conversely, does the handbook or policy manual by its very terms state that policies are subject to change at all or that the handbook/manual does not create any employment contract). Employers should therefore be careful what they put in any policy statements or handbooks and should have them reviewed by attorneys before putting them out. Equally, employees should look to their handbooks, etc. (and as necessary, review them with an attorney) in the event of a dispute over vacation, to see what rights they may have.

• Once an employer has approved vacation for an employee, if the employee then spends money relying on that approval (e.g., books non-refundable air fare) and the employer later changes its mind and tells the employee to not go on vacation, the employer may have to reimburse the employee’s out-of-pocket costs.

• While no state requires vacation or specifies how much employees get, some states do have laws that IF the employee is allowed to accrue vacation, that vacation then becomes the equivalent of wages. The employee must be paid out for any accrued or earned but unused vacation days when employment ends. Therefore, employers and employees alike should always check the laws of their specific states.

• While employers do not have to be fair (e.g., they can let Jane go on her cruise line vacation while telling Susan she has to work), they cannot illegally discriminate based on protected characteristics such as race, color, national origin, religion, sex, age over 40, or disability. (Those are the federal categories; check your state’s law to see if there are any additional protected categories.) However, as long as the company’s vacation policy is not based on some protected category, an employer may treat employees differently in terms of granting or approving vacation time.

What to do if you are being cheated?

If you believe you are being treated unfairly, you should first reread your employee manual to see what it says about vacation leave. Another step is to drop into your HR department and discuss the matter directly with its manager. Though the manager may be extremely sympathetic, s/he is still bound by her company’s policies.

Should these steps prove unsatisfactory, telephone the Department of Labor in your state for advice. (If you believe that you are being treated differently in regards to vacation time than other employees due to your race, national origin, sex, religion, disability, or age over 40, then you would contact the Equal Employment Opportunity Commission (EEOC) or your state’s equal rights agency for help.) If you prefer looking to court for help, see an attorney to review any documents that relate to your job; the attorney can advise you on the merits of your case and help you file a legal action if appropriate.