Employee Use of Earned Paid Time Off

I ran into an interesting situation the other day.  An employer, who offers Paid Time Off (PTO) hours to employees instead of separate sick and vacation time, enacted progressive discipline on an employee who used those PTO hours.  Normally, I would ask the employer these questions:

• Did the employee have the PTO hours banked?
• Did the employee violate the attendance policy (i.e. call in too often)?
• Did the employee not follow established protocols for calling in?
• Is there some other on-going issue I am unaware of with the employee?

I ask these question to establish a framework for the progressive discipline (since the "write up" did not go through me before issuing it to the employee).  This covers the employer for questionable decisions.  When I asked the questions, these were the responses I received.

• Did the employee have the PTO hours banked?  Yes.  They had more than enough time to cover the time they called in sick for.
• Did the employee violate the attendance policy (i.e. call in too often)?  No.  The employee has called in sick a total of 5 times in a year, while the attendance policy clearly states an employee cannot call in more than 6 times in 6 months.  However, the supervisor listed this policy as one of the reasons behind the disciplinary action.
• Did the employee not follow established protocols for calling in?  No.  The employee actually went beyond the established protocols.  The established protocols state an employee must call in at least 2 hours in advance to ensure proper coverage for their shift; however, this employee called in 6 hours in advance.
• Is there some other on-going issue I am unaware of with the employee?  No.  There are no other performance issues with this employee.

Upon further discussion with the supervisor (supported by their manager), it came out they felt the employee was excessive in their use of using PTO for sick leave - even though the employee did not violate the policy.  This is what I find interesting - employment policies enacted but not followed by supervisors and management.  One of the primary policies where you can find this is in a PTO or sick leave policy.

While employers give the PTO or sick leave benefit as an incentive for people to work for them, I have found employers do not really want you using that time.  And while they will verbally tell you they would rather you stay home then come to work sick - that is not always the case.  They would rather you come to work, demonstrate that you are truly sick, and then send you home.  This becomes even trickier with PTO hours because PTO hours are not technically distinguishable between sick/vacation.  An employee can use the hours as they need - as long as they follow policies (which this employee did).

My recommendation was to have the progressive disciplinary action reversed or at least down-graded to a verbal warning, while having the supervisor and manager retrained on progressive discipline and organizational policies.  However, this recommendation (not surprisingly) was shot down by the higher tiers in the organizational chart. 

What the employer failed to realize (or accept) is this inconsistency in policy and practice can get the employer in a world of trouble.  Regardless of "At Will" statutes and policy disclaimers about contractual agreements, courts are increasingly recognizing policy manuals as official employment agreements.  And when there are inconsistencies in the policy and application - it becomes and employment attorney's dream.  So make sure your supervisors and managers are schooled on those policies and how you, as the employer, expect them to apply those policies.  Additionally, it doesn't hurt to have any sort of progressive disciplinary actions go through several pairs of eyes to ensure everything is spot-on.  Those little slips of paper become official documentation and prized evidence for an employment attorney, so employers should be exceptionally careful in how they use them.