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TJ, Esq.
TJ, Esq., Attorney
Category: Employment Law
Satisfied Customers: 11783
Experience:  JD, MBA
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I had a previously scheduled surgery before I turned in my

Customer Question

I had a previously scheduled surgery before I turned in my 30 day resignation. My doctor says I need to be off my feet and keep my foot elevated. Can my employer withhold my accrued vacation time if I'm out of work due to medical reason and unable to be at work to work my time out for my resignation date?
Submitted: 1 year ago.
Category: Employment Law
Expert:  TJ, Esq. replied 1 year ago.

Hello and thank you for the opportunity to assist you. My name is ***** ***** I will do my very best to answer your legal questions.

To clarify, are you suggesting that your employer ordinarily pays employees for unused vacation when they resign, but you are afraid that they will retaliate against you and refuse to pay since you will have to take 2 weeks off?

Customer: replied 1 year ago.
if you submit the required notice of resignation (in my case 30 days) any unused vacation is paid out on the last paycheck. And, yes, I am afraid since my doctor is requiring me to stay off my feet for the last 2 weeks of my notice my employer will not pay out my unused vacation time.
Expert:  TJ, Esq. replied 1 year ago.

Hi again.

Thanks for the additional information.

If it is ordinarily your employer's policy to pay, then from a legal standpoint your employer should pay, unless two things:

(1) It reserved the right to not pay for unused vacation in the event of misconduct; and
(2) You are required to give 30 days notice in order to be eligible to be paid for unused vacation, and your taking 2 weeks off during the 30 day notice period was avoidable. In other words, when you gave notice did you know that you'd need to take time before returning to work? If so, then the employer may rightfully argue that you should have waited to give the notice. But if it came as a surprise, and is not ordinarily expected after the type of surgery that you had, then you likely have a good legal argument that it was unforeseen that you'd need to take time off during the notice period, and therefore, it should not be considered misconduct, etc.

The bot***** *****ne is that if your employer refuses to pay, then you'll need to decide whether or not to sue your employer. Depending on the above, your may or may not have a strong case.

Does that answer your question? Please let me know if you need clarification, as I am happy to continue helping you until you are satisfied.

Expert:  TJ, Esq. replied 1 year ago.

I should also point out that you may be able to avoid this problem by simply telling them that you will stay an additional two weeks if necessary because of the unexpected issues with your foot.

Expert:  TJ, Esq. replied 1 year ago.

Hello again. I didn't hear back from you, so I'm just checking in to make sure that you don't need more help on this issue. If not, then please remember to provide a positive rating to close out this question (and please remember that your positive rating is the only way that I'll get credit for helping you, so I greatly appreciate it). Thank you!