Can an absence be used against an employee even if they have time off to cover the absence?

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Can an absence be used against an employee even if they have time off to cover the absence?

A new policy at my workplace is as follows: If an employee calls out because they are sick, that call out is listed as an “absence”, even if the employee has time-off to draw from. After 6 “absences” the employee will be terminated. Is this legal, to use days that are called in due to sickness as a “mark” against the employee even if they have accumulated the time off to cover that day?

Asked on February 19, 2011 under Employment Labor Law, Massachusetts

Answers:

M.D., Member, California and New York Bar / FreeAdvice Contributing Attorney

Answered 10 years ago | Contributor

Unfortunately, this is legal.  The reason is that PTO is not something that an employee is automatically entitled to.  As a general rule there are no laws governing such time.  It is up to an employer's discretion as to whether or not to provide such a benefit, and if it does, whether or not to approve the circumstances for which such time may be taken.  Bottom line - employees do not have the right to use any unused PTO as they choose. 

Note:  This above holds true unless there is a union/employment contract or a company policy to the contrary, or workplace discrimination is involved.   

The fact of the matter is that employment relationships are what is known as "at will".  Accordingly, an employer can hire or fire someone for any reason or no reason whatsoever, as well has increase/decrease salary/hours, promote/demote, and generally impose requirements as they see fit.  An employee in turn can work for an employer or not, their choice. 


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