In the booming gig economy, some workers trade employee status for the freedom of being an independent contractor and setting their own hours. But one benefit every independent contractor misses, at least a little, is paid time off, also called PTO. Paid time off in Florida can include any off-work time that an employee is paid for. This can include paid vacation time, those blissful days you can head to the beach or fly out to a ski slope, but it can also mean paid sick leave. Does Florida law mandate vacation time? How about sick leave? And what happens to paid time off that you accrued if you leave the job before using it? That's one of the questions that Florida paid-time-off laws would address, if Florida had PTO laws. But, unfortunately, the fact is that the state of Florida has not enacted any laws that give employees the right to paid time off.
What is Paid Time Off?
You've doubtless heard of sick leave and vacation time. You may also have heard of mental health days and personal time. Any or all of these can be part of a salaried employee's work benefits, and they are valued highly by workers.
Some companies do not break these benefits down into categories (like vacation time or sick time), but simply offer a set number of days of paid time off, or PTO, that the employee can use for any purpose during the year. Whatever these benefits are called, the important thing is that the employee is paid for the time to the same extent, and in the same amount, she would have been paid had she worked.
Do Florida Paid-Time-Off Laws Require Vacation Time?
State paid-time-off laws can describe an employee's rights to vacation time, sick time, personal time and PTO. Do Florida paid-time-off laws mandate that an employer provide employees with PTO for vacations or personal time? They do not.
For one, Florida does not actually have any PTO laws on the books. Look high and low in the statutes, and you won't find a single law about paid time off. And, even if Florida had a law, it is not likely that the state would require that employees receive paid vacation time or personal time as part of their wage contract. Few states require that an employer offer a salaried employee any type of PTO as a right, and no federal laws mandate paid vacation or personal time, either. Contrast this with laws in European countries where months of vacation time are required.
However, vacation time and other paid time off are benefits that employees love. Therefore, these benefits are offered by employers as incentives to get workers to sign on with a business and to remain working there. And, if a particular employment agreement provides for paid vacation time, state courts will enforce those provisions under Florida contract law. That means that an employee whose contract gives her two weeks of paid vacation time can sue the employer for breach of contract if he refuses to honor that part of the agreement.
Are Employers Required to Pay Vacation Upon Termination in Florida?
Another important issue regarding paid vacation time comes up at the end of an employer/employee relationship. It arises when an employee quits or is terminated. If a Florida employee has accrued paid vacation time or other PTO that she is entitled to use but hasn't used, should she get paid for that time? Or is Florida a "use it or lose it" state, where employers can require you to use your allotted vacation time in the year it is earned or risk losing those hours of vacation time at the end of the year?
Very few states require that employees be given paid vacation time as part of their employment contract. That may make you may think that states won't require that any accrued paid time off be paid when an employee leaves. But some do. And some don't. And some leave it up to the employer to set out a clear policy on the subject.
State laws considering the issue fall into three categories.
- laws that prohibit forfeiture of vacation time;
- laws that don't address the issue; and
- laws that fall somewhere in the middle.
The issue in all of these states is really a wage issue: should vacation time be considered a form of wages? If so, vacation time should be paid back to the employee. If you think about it, employers must pay wages that an employee has earned when the employee leaves the job. Those wages can't be forfeited. So, accrued vacation and other paid time off cannot be forfeited either.
In states like California and Montana, the laws are clear: vacation must be deemed an form of wages. That means that once you earn vacation time, it belongs to you. An employer cannot take back vacation time either from one year to the next or when the employee leaves.
In the second category are states like New York and Ohio. In these states, vacations are considered wages unless employers write up contracts saying the opposite. If the employer’s policy is clear that earned vacation time that hasn't been used is never paid out like wages when the employee leave, then the policy controls. Likewise, if the policy clearly states that unused vacation time can never get rolled over year to year, then the employer’s policy will take control.
Read More: Florida Labor Laws Regarding Vacation Time
What's the Status of Use-It-or-Lose-It Laws in Florida?
So, how about Florida? Are terminated employees entitled to vacation pay in Florida? Is it legal for a company to not pay vacation time in Florida when an employee leaves? Or to refuse to let the employee roll over the time into the next year?
Florida is one of a third group of states, together with states like Texas and Alabama, that don't have any PTO laws about this subject. Florida has no laws at all that address payout of earned vacation time when an employee leaves. In these states, "use it or lose it" policies are not prohibited since there is no law on the subject. Therefore, they can be used to prevent a payout at termination or a rollover of vacation time. But in Florida and these other states, if an employer’s policies are ambiguous, or suggest that the employee gets vacation hours at termination, then courts interpret the policy to require that the employer pay accrued vacation time.
In other words, Florida state statutes do not mention the issue. However, Florida state courts interpret employee policies as set out in contracts and guidebooks to create an implied contract. Under that contact, employees are entitled to receive their earned vacation time. Since Florida courts usually interpret policies in the manner most favorable to the employee, an employer that wants to avoid this result must define the policy clearly and precisely.
But to be clear, no matter in which state an employer does business, one that accepts or rejects “use it or lose it” laws, many employers choose to pay vacation time when the employee leaves. So, although Florida doesn't prohibit these laws, many Florida employers do pay employees their accrued vacation time when they leave the company, and many allow employees to carry over their vacation time to the next year. They do this in order to hire and keep the best employees.
What Are the Florida Labor Laws Sick Days Requirement?
Okay, so Florida law doesn't require that an employee is entitled to paid vacation time. But surely, paid sick time is mandated by the state labor law? Actually, Florida labor laws do not discuss or require paid sick time, either. In Florida, companies have no state law obligation to provide employees with paid sick leave. As is the case with vacation time, an employer must honor any sick time provisions that are part of an employee's contract. An employer who opts to provide sick leave benefits to its employees must comply with the terms of the employment contract.
Do federal laws require Florida companies to provide paid sick time? No, they do not require any employers to provide paid sick time. But an employer in Florida may be required to provide an employee unpaid sick leave under the federal Family and Medical Leave Act, since federal laws apply in all states.
What is the Family and Medical Leave Act?
It is frightening to be sick and even more frightening to have a child who is ill. In addition to worrying about getting yourself or your child well and healthy again, you may also worry about whether you will be able to keep your job. In many states, like Florida, the state labor laws do not guarantee the right of a salaried employee to take time off for illness. That is, neither paid nor unpaid sick time is mandated under Florida law.
However, a federal law called the Family and Medical Leave Act (also referred to as FMLA) can offer some help to employees. This law applies only to larger companies or employers, those with at least 50 employees, and it requires only unpaid sick leave, not paid sick leave.
The FMLA is enacted at the federal level, and therefore it is the law in every state, including Florida. The law was written in order to provide employees with some job security when they are facing one of a variety of health-related situations. Under FMLA, employers subject to the law must give employees up to three months of unpaid leave in a few situations. These include:
- when an employee herself suffers from a serious health condition;
- when the employee becomes a parent by having a biological child or adopts a child; or
- when an employee needs to take care of an immediate family member (including a spouse, child or parent) who suffers from a serious health condition.
Not every employee qualifies for FMLA protection. In order to qualify, employees must have worked at least a year for the company or employer, with at least 1,250 hours worked immediately before the date the FMLA leave begins. For employees to be eligible for FMLA, they must: (1) have worked at least 12 months (which do not have to be consecutive) for the employer; and (2) have worked at least 1,250 hours during the 12 months immediately before the date FMLA leave begins.
FMLA protection has been expanded for families of men and women in the Armed Service. These provisions of the FMLA, added in the National Defense Authorization Act, mandate that employers allow employees up to 26 weeks of unpaid leave if they are the spouse, son, daughter, parent or next of kin of a member of the Armed Forces who is undergoing medical treatment, recuperation, or therapy for a serious injury or illness.
Teo Spengler earned a JD from U.C. Berkeley Law School. As an Assistant Attorney General in Juneau, she practiced before the Alaska Supreme Court and the U.S. Supreme Court before opening a plaintiff's personal injury practice in San Francisco. She holds both an MA and an MFA in English/writing and enjoys writing legal blogs and articles. Her work has appeared in numerous online publications including USA Today, Legal Zoom, eHow Business, Livestrong, SF Gate, Go Banking Rates, Arizona Central, Houston Chronicle, Navy Federal Credit Union, Pearson, Quicken.com, TurboTax.com, and numerous attorney websites. Spengler splits her time between the French Basque Country and Northern California.