Can an employee sue for being told they are denied time off?

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Can an employee sue for being told they are denied time off?

So I have an employee that had previously had a family emergency and had to leave the country. She was not eligible for time off but we approved the time off. Our company policy states that 30 days notice must be given prior to taking leave. She just came to us again that she has to go away next week because her mom is ill. We explained that unfortunately we cannot grant this time as there are other people in her department away on vacation as well as a person on maternity leave. We are a factory and can’t leave the department. deprived of staff. We explained that if she needed that time then she was giving up her position at our company. We want to put a letter in writing but not sure of how to word it. Now she is saying she is going to sue us.

Asked on August 3, 2016 under Employment Labor Law, New York

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 4 years ago | Contributor

No, she cannot sue for being denied time off. First, if an employee does not have earned PTO (or doesn't have any at that time; e.g. used up whatever she earned, has not vested for the year, etc.) and employer has NO obligation to let her have time off and can terminate her for missing work. Even if the employee has PTO, the employer has the right and discretion to deny its use at any given time, if workflow, staffing level, busy season(s), projects, etc. mean that the employer can't release the employee then; the only limitation on this discretion is the employer must be reasonable and must let the employee ultimately use the time--the employer can only say "now is not the time" if there is a reason to support that. And the employer does not have to allow leave in violation of company policy on notice, scheduing, etc. Based on what you write, you can legally deny her the time off now and fire her for absenteeims if she leaves.
The only exception: if your company is covered by, the employee is eligible for, and the situation warrants--and she properly requests--FMLA leave or leave under a similar state law (which tend to have more or less the same criteria): you can't deny someone use of leave they get under the law. You can find the FMLA rules and criteria on the U.S. Dept. of Labor website.


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