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Patrick, Esq.
Patrick, Esq., Lawyer
Category: California Employment Law
Satisfied Customers: 12806
Experience:  Significant experience in all areas of employment law.
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My daughter was written up at work a few months ago at her

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My daughter was written up at work a few months ago at her job which she has worked at for 10 years. She was out on stress leave, we lost my Father and a step Brother all in a 4 month period of time. She had a Dr's note but that didn't matter. Now they have told her she can't take any of the vacation time she has built up, (about 2 weeks of time). Is that legal? We live in California.
Thank you.
Hello and thank you for entrusting me to answer your question. I am so sorry to hear about the recent losses you've experienced within your family.

Although vacation days, once earned, cannot be forfeited by an employee, an employer still retains the right to dictate when vacation is used. Accordingly, an employer is typically within his or her rights to tell an employee that they can't use vacation during a particular week or month.

The above noted, an employee whose stress qualifies as a "serious health condition" would be eligible to take up to 12 weeks of protected, unpaid leave pursuant to the Family Medical Leave Act ("FMLA"). The employee would need a doctor to conclude that the stress qualifies as a serious health condition. For more information on FMLA leave, visit this link:

I sincerely XXXXX XXXXX this information helps you and I wish you the very best of luck. Bear in mind that none of the above constitutes legal advice nor is any attorney client relationship created between us.

Please abide by the honor code of this website by kindly clicking on the GREEN ACCEPT button if my answer has been helpful to you. Thank you very much.
Customer: replied 5 years ago.
All she wants to do is take a few days off but the only reason they are not allowing her is due to the fact she was written up. Other employees in the same department are alowed to take their vacation time. Isn't that illegal?
No, that would generally not be illegal. It would be illegal only if your employer was refusing her request to use the vacation on the basis of her race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age (over 40), or sexual orientation. This would constitute actionable discrimination. Unfortunately, no law prohibits an employer from treating an employee differently because they were written up.

As I mentioned, she may still be eligible to take unpaid leave pursuant to the FMLA. I hope that this adequately clarifies my response and makes it worthy of your "accept." Best regards XXXXX XXXXX very happy new year.
Customer: replied 5 years ago.
Sorry I hate to be so persistant but any idea how long they can prevent her from using her vacation time?
It's quite alright. I want to make sure that I completely address your concerns and that you are entirely satisfied with my answer.

Unfortunately, there is no limit to how long an employer can force an employee to wait to use vacation. However, if your daughter quits or is terminated, her employer must reimburse her for all unused vacation days at the time of separation of employment (or within 72 hours if she quits without giving notice).
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