Problems with PTO and Vacation Leave Donation Programs

Here are HR legal and compliance issues you need to know: **********************************************************

Many times PTO and Vacation Leave Donation Programs create issues with employee rights under the ADA that go far beyond the morale issue of employees feeling coerced to donate their valuable time off.


Many companies provide Leave Donation Programs (or Leave Transfer Programs) whereby employees can donate some portion of their PTO or Vacation hours to help a struggling coworker. On the surface, such a program seems to be a wonderful benefit that helps create the community/family culture that many businesses try to achieve. If your organization is contemplating such a program, here are a few issues to consider.

#1 What is the morale impact on employees who don’t want to donate their time off to such a program?

#2 Is the system structured such that the hours donated are anonymous or is there certain publically available data that can cause disruption among employees who can reverse engineer the total donated to determine who donated and who did not?

#3 Will employees feel pressured to contribute hours to a coworker they may not know or don’t have a good relationship with?

#4 What is the financial impact of donated hours from employees earning $30,000 per year that are given to a manager earning over $100,000?

#5 Aside from the impact on employee relations and finances, federal agencies may have an opportunity to get involved in such matters if recipients of the donated hours claim discrimination on the basis of their disability. A recent case addressed this issue. In the case of Winston v. Ross, (10th Cir. Feb. 27, 2018), the Tenth Circuit Court of Appeals denied Winston’s claim of discrimination because her employer (Ross) ended her participation in a Leave Donation Program (LDP). After Winston exhausted her FMLA leave, the company approved her participation in the LDP for one (1) year. Under the ADA guidelines, the company also provided Winston with a flexible work schedule and temporary reductions in her hours due to her need for additional time off. Just about all of her time off was paid under the LDP, which resulted in Winston having no reduction in income during the year. After one (1) year, the company denied her continued participation in the LDP and that is when Winston sued claiming discrimination under the ADA. The employer won this case, but it was an expensive win. ADA issues to consider for a Leave Donation Program: **If the company can control who participates in the LDP, then the company is open to claims of discrimination as in the case above. **Will such hours be counted as absences since the time off is donated under the LDP, rather than unpaid as an ADA accommodation? **When will a company be able to claim an undue hardship and fill the position if the employee continues receiving pay under the LDP? Companies that have or are considering a LDP need to very carefully consider the language describing participation in the program.

Dedicated To Enhancing Your HR Assets!

Kiesha Valentine, PHR, SHRM-CP, CMHR
Human Resources
Cell: 714-982-1789
Mailing Address:
5753 E. Santa Ana Canyon Rd., Suite #G242
Anaheim Hills, CA 92807


Categories: HR NEWS

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