Here is the question: Can my Employer make me use my sick or vacation pay when I miss time for workers’ compensation? Employers often offer vacation or holiday pay as well as some form of sick pay. Sometimes, the employer lumps all of these forms of benefits into one Personal Time Off (PTO) category.
Regardless of what it is called, the employer cannot use vacation or sick pay, earned before the industrial accident, instead of paying for workers’ compensation benefits it owes. In other words, if you earned some form of PTO for work that was done before the injury, it is improper for the employer to make you use this leave instead of paying workers’ compensation benefits. Keep reading for several examples.
Seeking treatment or lack of light duty work assignments
For example, if you have to miss work to attend therapy, visit the doctor or because suitable light duty is not available, some employers will make you use your sick or vacation time to cover the days you missed. The law, however, prohibits an employer from forcing an employee to use this leave in lieu of workers compensation benefits.
In these cases, an employee may opt to use the sick or vacation time to pay the difference between normal, full wages and the amount workers’ compensation pays, but the employer cannot force you to do so. If the employer applies such PTO time instead of paying the workers’ compensation benefits you are entitled to, you may have a right to payment of the workers’ compensation benefits and restoration of the used time off, including reimbursement of any time you were required to expend.
In other cases, we have seen employers deny employees the use of vacation time after being out of work on workers’ compensation. For instance, an employee returns after missing six weeks of work due to an injury and is denied her preplanned vacation because she has already missed too much time.
You are entitled to take full advantage of vacation time, the same as any other employee, notwithstanding how much time you have missed due to a workers’ compensation claim. When an employer denies the ability to take vacation because you have already missed time from work due to your injuries, the employer really is engaging in retaliatory behavior, treating you differently because of your injuries.
Such conduct may violate both the workers’ compensation law against retaliation and both federal and state laws against disability discrimination.