Can my company take away my earned vacation

I was diagnosed with cancer in March. I had my surgery in April, on a Thursday, and was working from home the following Monday. My company does not offer short term disability so they agreed to work with me while going through chemo. I had 4 months of chemo – I worked from home the weeks I had chemo and came into work the off weeks. I have now completed chemo and started back to work at a non-full time week I work 6-7 hours in the office and the balance of the day at home. This is due to the neuropathy the chemo caused. I am on Gabapentin and cannot drive/work a lot of it because of how it affects me. I turned in a vacation form request and was told I should not be able to take my vacation because of the time I have

Asked on October 2, 2017 under Employment Labor Law, Colorado


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 3 years ago | Contributor

1) Your company may legally apply your vacation or other PTO to any days you were out; and if you are hourly, they can apply vacation or PTO on an hourly basis to any hours you were not at work. (This assumes you were paid when not at work; if you were unpaid, they cannot charge that time to your paid time off.) Nothing requires the employer to pay you to not be at work, even if was due to cancer or chemo. So some amount of your vacation time could have been used up by absences--potentially all of it, if you out enough.
2) Even if you have not lost all accrued vacation days and still have some, it is undisputed that an employer has discretion to deny an employee the right to take vacation if doing so when the employee wants would be disruptive to the employer. You describe working from home, possibly shorter-than-normal hours or presumably while being less-productive (due to the treatment) for months at a time; and even if you worked as hard as you could while at home, if your job is usually done onsite, there would almost certainly be some amount of disruption or productivity loss simply from not being able to freely collaborate, meet with, etc. coworkers, colleagues and supervisors. That being the case, it would be reasonable for the employer to say "No: this is not an appropriate time to go on vacation--especially not after all we did for you. We want you in the office and available."
Bear in mind, they did NOT have to let you work at home: letting an onsite person, with an onsite job, work offsite is not considered a "reasonable accommodation" to a medical condition because it requires a drastic revision of or change to the job--and the law does not require that. Therefore, you company already appears to have been generous and accommodating to you.

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