Is it legal for an employer to deny unpaid time off?

Get Legal Help Today

 Secured with SHA-256 Encryption

Is it legal for an employer to deny unpaid time off?

I have an employee that has requested unpaid time off. Due to staffing needs, I cannot approve it. I have been told that because we do not have anything written in our employee handbook, he can take legal action against us for denying it. Is this true?

Asked on August 5, 2010 under Employment Labor Law, Wisconsin

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 10 years ago | Contributor

IF your company is large enough to be covered by the Family and Medical Leave Act (FMLA) and IF the leave is to provide medical care or help the recuperation of the employee himself or his immediate family, and also IF the employee is requesting leave for that purpose, you'd have to grant it. I believe the cut off for FMLA leave is at least 50 employees; this would be something to discuss with your employees general counsel, HR consultant, etc. to see if the law applies to you and how to comply with it.

Otherwise an employer is under no obligation to allow unpaid leave. Whomever gave you the advice about the Employee Handbook actually has it backwards: IF the employee handbook stated that there was a right to unpaid leave, then if the handbook lacked any of the protective or limiting statements usually put into it (e.g. "policies may be changed at will"; "nothing in this handbook creates a contract of employment"), then it's possible the employee handbook would be taken to create an implicit contract guaranteeing that leave, at least until the policy is changed. However, where there is no agreement as to leave, not even anything in the employee handbook that might constitute an agreement or contract, then the employer is free to deny leave and to fire an employee who tries to take it. An employee without a contract is an employee at will: the employer may discipline, demote, transfer, terminated, etc. such an employee at any time, for any reason, and also has essentially free reign (subject only to obey wage and hour laws, don't discriminate, obey workplace safety regulations, etc.) to set work conditions and terms.


IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although AttorneyPages.com has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.

Get Legal Help Today

Find the right lawyer for your legal issue.

 Secured with SHA-256 Encryption