Can my employer force me to take vacation time while out on disability?

UPDATED: Apr 7, 2011

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Can my employer force me to take vacation time while out on disability?

I notified work that I was going to be out for 4 weeks due to an illness. While out I was contacted by a manager at work and told that if I stayed out for 4 weeks my last week would be counted as vacation time. Is that legal?

Asked on April 7, 2011 under Employment Labor Law, New Jersey


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 11 years ago | Contributor

Yes, an employer can require that you use vacation time while out on disability. First, note that unless you are taking some legally protected medical leave--e.g. Family and Medical Leave Act leave--an employer does not have to necessarily even let you take time out for illness; employers may terminate employees (who don't have contracts to the contrary) if they don't show up for work. And if you are using some leave protected by law, like FMLA, you have to make sure that your company is covered (meets the requirements), you are covered (meet the requirements), and that you complied with whatever notice and proof requirements are mandated. Otherwise, it's voluntary whether the company lets you take leave, and being voluntary, they can put limitations or conditions on it.

Second, even if you are using a protected leave, those allow the company to require you to use paid time off (e.g. vacation, sick, personal, or comp time) for some or all of the leave; you get to take the leave and keep your job, but you may have to use your days off. Below, for example, is a link to a relevant page put out by the DOL about FMLA; if you scroll down, you'll this requirement.

Look at it this way--you're not actually losing anything. After all, by using the vacation, you are being paid for part of the leave, where otherwise  you'd not be paid. And an employer could refuse to let you use vacation shortly after your having been out on an extended leave, so you might not otherwise have the chance to use that week for awhile.

Here's the link:

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 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.

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