ThanksgivingThanksgiving is one of the nicest holidays in the year – getting to spend time with family and loved ones, eating turkey (and maybe even falling into a food coma!) can feel like a well-needed indulgence, especially if you been working hard all year. The problem is that some employers stay open on Thanksgiving, or the Friday after Thanksgiving (Black Friday), and schedule employees to be working during those days rather than spending time with their families.

One is top questions we get around the holidays is whether it is legal to call in sick to take time off for Thanksgiving, if your workplace has scheduled you to be working on those days, or if you work at a place that doesn’t offer any vacation time and on. Can you get in trouble? Could you get fired for calling in sick on Thanksgiving? Read on for some tips.

Vacation Time in California

If  you are living and working in California, it might surprise you to know that there is actually no legal requirement that employers provide employees with vacation time in California, at all. In California, sometimes employees ask questions about whether vacation time should be paid or unpaid. The reality is that there is actually no requirement that employers even provide employees with any vacation time at all. An employer can choose whether to offer vacation time to its employees as a perk, and this vacation time can be paid or unpaid. However, there is no requirement that a employer provide a specific number of days to employees for vacation, to allow vacation time at all. An employer can decide that it simply does not offer its employees any vacations or vacation days.

“Use it or Lose it” Policies are Illegal

width the foregoing being said, although an employer does not have to provide vacation time, if they do provide vacation hours, they cannot have a “use it or lose it” policy,  at least not in California. If your employer is an out of state employer with some employees in California, and they have a use it or lose it policy, it’s probably because they are used to operating in other states, which do allow such anti-employee practices. California does not. It is illegal for California employer to tell employees that if they do not use their vacation time, they will lose those hours, and those hours will not accrue from year to year.

Can an Employer Deny Vacation Time Requests?

One of the top issues that comes up during the holidays is whether an employer can simply deny vacation time request by employees. The short answer to this question is “Yes, but it depends….”

Obviously, an employer can approve or deny vacation time request based on the needs of the business. For example, if your workplace is on the verge of having a complete a huge project, and you are solely responsible for it, your desire to take vacation at a critical moment in that project’s development will probably not be possible. On the other hand, with specific reference to Thanksgiving and the holidays, if your work regularly schedules people to cover different shifts and your shift happen to be scheduled for a holiday, without any malice or indication that it was done intentionally to hurt you, then there is probably not going to be grounds to take the position that the employer is being unfair. After all, employers do have authority in the workplace to schedule the shifts of their employees, and this includes approving and denying request for leave time.

On the other hand, if you’re being treated unfairly due to some other type of reason, because your boss or supervisor is retaliating against you, is prejudiced toward you, or is somehow treating you different than other employees based on an unlawful characteristic (race, religion, sexual orientation, gender, marital status, maternity status, etc.)  then there may be more to the story. Denying vacation time is a form of adverse employment action that can give rise to an employment claim. If you’re not being treated fairly for an unlawful reason, it’s important that you get the advice of an attorney who can tell you whether what is happening to you is unlawful.

Calling in Sick for Thanksgiving

So if you do not have any vacation time, or have vacation time but are not being permitted to take it for Thanksgiving, can you simply call in sick and take the time off anyway? The answer may surprise you.

Before July 1, 2015, Californians did not have any mandatory paid sick leave. The law changed however, and starting July 1, 2015, all employees in California, including full-time, part-time, seasonal, and all others, must receive mandatory paid sick leave of 3 days per year. Your employer is violating California law if this requirement is not met. So, if you do not have vacation time provided by your employer, you do have the right to take paid sick leave, in the event you or family member, including a child, falls sick. It does not matter whether that illness occurs on a holiday, or a day close to a holiday, like black Friday, or any other day.

Can you Get Fired for Calling in Sick on Thanksgiving?

With all that being said, if you have not been sick all year, and you happen to have fallen “sick” (cough, cough)  on a day that you specifically requested to take off that was denied, your employer may take this as a form of insubordination – meaning, refusing to abide by the employer’s instructions or honoring your commitments. If you have an employee handbook, it may state that unapproved or unexpected non-emergency leave time can result in disciplinary measures. Can you really get in trouble for not coming to work to take time off for holiday? Unfortunately, the answer this question is yes. In California and in every other state, employment is considered at-will, meaning that an employee your can let you go for any time for any reason, and does not even have to have a reason for letting you go. Unless the employee has let you go for an unlawful reason (race, religion, sexual orientation, gender, marital status, maternity status, etc.), or dealt with you in a manner that constitutes harassment, discrimination, retaliation, then it is not unlawful for them to let you go for missing work. Employers do not necessarily have to provide warnings or impose lesser disciplinary measures, such as suspension, or other type of discipline, for missing work. They can legally simply let an employee go. If you have an employee handbook, it will probably specify that it is up to the discretion of the workplace to determine which disciplinary measure to impose, and all violations of their policies can include discipline up to and including termination.

Dealing with a Thanksgiving Work Schedule

If you have been scheduled to work on Thanksgiving, and would really like the time off, rather than calling in sick, one alternative strategy is to have a honest discussion with your employer, explaining the circumstances. For example, will you have a family member Thanksgiving who is elderly, ailing, or has a medical condition that would really benefit from you being at Thanksgiving and not at work? Will you have a family member or relative flying into town that does not ordinarily come and visit you? Do you have a young child who would like to have his or her parents together at Thanksgiving, to enjoy the holiday? Or if you have neither, and simply love Thanksgiving, as many of us do, expressing this to your employer could help you not only get the time off, build a better relationship with your employer. Some employers are just bad bosses that are hard to deal with, but many employers have decent managers, supervisors, or other people in charge were more humane and can understand the desire to be with family.

Getting Legal Help

It would sure be nice if every employer was 100% fair and kind to its employees all the time, but on fortunately that is not always the case. In many cases, employees are treated badly, and victims of prejudice, hostility, and unlawful employment actions. If you find yourself in a situation where your rights are being trampled on, it is not a bad idea to get an attorney’s input. Axis Legal Counsel offers free consultations to potential clients who call in wanting to get peace of mind about their employment situation. In as little as 10 to 15 minutes, you could speak with a experienced attorney who can speak to you about your case and determine whether you’re being treated unfairly.

We have counseled thousands of potential clients
about employment 
related claims,
and we will be glad to assist you.

readreviewssgAXIS Legal Counsel is an employment law firm representing clients in numerous kinds of lawsuits and disputes involving some of the nation’s largest employers. Whether it is sexual harassment, other kinds of harassment, discrimination, race discrimination, pregnancy discrimination, medical/disability discrimination, racial harassment, retaliation, hostile work environment, wage/hour, workplace bullying, or other claims, AXIS Legal Counsel is experienced in the field of employment and labor law and focused on providing high-quality legal service.

For information on retaining AXIS Legal Counsel to represent you or a loved one with an employee rights’ claim, contact info@axislegalca.com or call (213) 403-0130 for a confidential consultation, or visit our Employee Rights Practice or Individual Rights portal. AXIS is a Los Angeles, California law firm that provides victims of labor and employment law violations with aggressive representation to pursue the maximum extent of their rights.

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