A Holiday State of Mind and PTO

Your 2022 holiday survival is almost confirmed. You’ve gotten through your holiday parties without any accidents, harassment complaints, host-liquor issues, etc. It’s all over, right? No Virginia, not yet.

What, pray tell, could be left? Issues such as vacations, who’s going to work during the holidays, and the infamous holiday bonus, to name a few.

Ninety-Seven Percent of private companies have a paid holiday on Dec. 25 and 90% on Jan. 1. In the past, many companies closed that week. With careful planning, many employees find that a great week to be off work. However, you still have a business to run. What do you do if everyone wants to be off that week?

Do you have to let them? Of course not. It’s all about your paid time off (PTO) policy.

Just because an employee has PTO doesn’t mean they don’t have to work. Take, for example, Santa’s elves. Santa’s little helpers certainly know better than to ask for December time off. However, Eddie Elf gets cute and puts in a PTO request for December 20- 30. You approve it without reading it. The next thing you know, you’ve got elves lined up out the door wanting to take December PTO.

Your problem isn’t the elves; it’s your policies. While we all know you can’t do anything about Santa’s daughters seeming to take off at their leisure, you should update your PTO policy. Consider these suggestions: “PTO approval is discretionary and subject to business needs;” and, “Anyone who has been denied PTO but fails to report for work as scheduled will be considered to have voluntarily abandoned their job.”

What about employees who don’t celebrate any December religious holidays? You might ask them to “switch” December holidays with their own religious holidays. This way, they get their religious holiday off with pay and you have someone running the store while everyone else is off.

What if their religion prohibits working on December 25 and they are scheduled to work that day? For sincerely held religious beliefs, you will likely have to let them take off work as a religious accommodation.

Do I have to pay someone double if they work on a paid holiday? No, but your elves won’t be happy if they don’t get something for working when no one else must. What about employees who work extra hours the week of a paid holiday? Do they get overtime? Technically, no. Overtime is only required to be paid when someone has “suffered to work” in excess of 40 hours a week. Any PTO is not considered suffering to work and is not a part of the 40-hour threshold for overtime pay.

Last but not least, year-end holiday bonuses. If you promise elves a bonus, you may end up having to recalculate their overtime pay for the last couple of years. That’s because if the bonus is not purely discretionary, it becomes part of their regular pay rate and now their overtime has been underpaid. This risk can best be minimized by making it very clear, in writing, that if anyone ever gets a bonus, it’s at Santa’s sole discretion.

Now go home, relax, sip some eggnog by the fireplace, and hope with all your might that some of your elves show up to work this month.

This article first appeared in The Journal Record on December 16, 2022, and is reproduced with permission from the publisher.


Associated People:

Madalene A.B. Witterholt

Practice Area:

Labor & Employment