Demystifying Florida PTO Statutes: A Complete Guide

Overview of Florida PTO Statutes

Most employees in Florida are familiar with the general concept of Paid Time Off (PTO) as it is a standard feature of most compensation packages offered to employees. PTO typically includes vacation days, sick days, personal days, and sometimes even holidays. The allocation and usage of PTO is usually governed by some sort of policy created by the employer which generally details the accrual of the time off, when the time off can be used, and whether the time off can be carried over year-to-year or if it is use-it-or-lose-it time off .
Also, while employees are likely familiar with the concept of PTO, many are unaware of the fact that Florida has certain laws which govern how PTO is to be accrued, whether it can be paid out, and what happens to unused PTO. In order to ensure that employers understand what laws govern the accrual and usage of PTO, Florida PST Law is prepared to discuss, in detail, the various statutes and regulations applicable to PTO in Florida.

Legal Background of Florida PTO Laws

In Florida, the legal framework governing PTO laws is governed primarily by federal law, as no state law in Florida specifically provides for the right to paid vacation time. However, once an employer has voluntarily established a PTO policy, such as a vacation policy, the employer must honor its policy under Florida law.
Federal Law
Florida employers should be aware of the federal laws that may apply when establishing PTO policies.
Employment standards: The Fair Labor Standards Act ("FLSA") does not prohibit employers from reducing or eliminating vacation or other benefits.
Other federal regulations: The Family Medical Leave Act ("FMLA") and the Uniformed Services Employment and Reemployment Rights Act ("USERRA") are two examples of federal laws that address PTO.
State Laws
Florida does not have any state laws specific to PTO; however, employers should also be aware of these general laws:
Because there are no state laws that regulate PTO policies in Florida, employers have flexibility in determining the number of days offered, the rate at which time accrues, how the time is earned and accrued, and what happens to the time if it is not used.

Florida PTO Accrual and Carryover Regulations

Florida employers have a wide range of options to create policies on how PTO is accrued and carried over from year to year. Generally, however, PTO accrual in Florida is straightforward. Florida law only requires employers to maintain accurate records of hours worked for non-exempt employees; it does not require employers to maintain records of leave used or accrued. Thus, PTO accrual is typically based on the number of hours worked (e.g., if an employee works 40 hours per week, that employee accrues 40 hours of PTO per week), however, companies with policies that specify accrual rates independent of the number of hours worked are increasingly common and generally acceptable.
Much like the accrual of PTO, carrying over of PTO in Florida is largely determined by company policy. Companies may choose to set a maximum amount of PTO an employee can carry over from year to year; they may establish that any unused PTO is forfeited at the end of its accrual period; or, they may permit employees to carry over their unused PTO time (within limits) from year to year. Of course, these policies must be applied consistently and equitably to all employees in order to avoid claims relating to discrimination, the equal pay act, and other labor protection legislation.
Surprisingly, Florida does not have any state-specific doling or accrual requirements; federal law does not mandate such policies. As previously mentioned, the only legal requirement relating to PTO in Florida is that employers maintain accurate records of hours worked by their non-exempt employees. As with many employment law issues, the reality is that Florida law leaves it to companies and employees to work out the details of how PTO will be handled.

Responsibilities of Employers and Rights of Employees

Employers must comply with all applicable federal and state labor laws regarding their employees’ compensation and benefits, including PTO. If an employer has no PTO policy in place, then it is not legally obligated to provide PTO to its employees. However, if a Florida employer provides PTO, the amount of PTO, eligibility, rates of pay and any other restrictions for PTO must be set forth in a written policy. Florida employers are not legally required to pay out unused PTO to employees upon separation. These can be changed or modified by the employer at any time. If, however, the employer implements a vacation policy that is less generous than a previously-existing vacation policy, such a change is likely to be found invalid as applied to existing employees if the old vacation policy constitutes an enforceable unilateral offer accepted by employees by their continuing employment. Of course, the employer can always offer or negotiate a different severance package in exchange for the employee’s signature on an agreement that releases the employee’s rights to future claims against the employer.
The FLSA does not require payment of either PTO or severance pay to employees who quit or are discharged. However, if an employer includes PTO in its wage and hourly policies, like payment for sick leave or holiday leave, then the employer has a duty to pay employees for accrued but unused PTO. Likewise, PTO pay must be included in the calculation of overtime if the employer includes PTO in its wage calculation, although Florida law does not require payment for PTO when determining overtime. An employer is not required to pay accrued PTO unless there is an enforceable contract of employment that provides otherwise. For this reason, employers may benefit from consulting with experienced HR professionals and/or legal counsel, particularly in drafting and implementation of PTO policies, rather than "borrowing" those policies from "best practices" guidelines from other employers.

Comparison of Florida PTO Laws with Other States

PTO laws are not uniform across the country. For example, some states require employers to provide sick leave to employees, while others do not. There are also differences in how sick leave is calculated and in whether employees can accrue or use PTO time in certain circumstances. These differences can create an uneven playing field in terms of the benefits offered to employees in different states.
Florida’s PTO laws differ from those in several other states, including California and Arizona. Florida does not require businesses to provide employees with sick leave or PTO. Employers in Florida are not obligated to offer any PTO at all, let alone paid PTO. Even though being mandatory, sick leave is not required in Florida; employers have the option of providing it to employees on a voluntary basis. Since Florida law does not require employers to provide any type of leave to employees, the distinction between PTO and sick leave is similar to that in federal law: Where PTO is required to be provided under federal law, PTO is generally not indicated to be different than sick leave.
Beyond the basics of PTO and sick leave, however, these provisions of Florida law make the state different from California and Arizona . In 2014, California become the second state (after Connecticut) to require employers to provide employees with paid sick leave. The law requires that employers provide employees with one hour of paid sick leave for every 30 hours worked, and details on how this leave must be provided in an employee handbook or other written policy. The law allows employees to use sick leave to care for themselves or to provide care to a family member, and prohibits employers from requiring an employee to find a replacement worker in the event of an absence related to an illness or other use of sick leave. By contrast, Florida law is more lenient, and similar to federal law rather than California law. It does not require that an employer provide a specific amount of sick leave or PTO, but if it does, the employer is required to specify in its written policy how much leave will be provided. Employers cannot prohibit employees from finding alternate workers in the event they use sick leave. Arizona law, similar to Florida law, does not require employers to provide paid or unpaid leave to employees.

Florida Business Best Practices

To successfully navigate the intricacies of PTO management, Florida employers should adhere to several best practices:
Policy Formulation and Clarity
PTO policies can have a substantial impact on employee attitudes and morale, and can even be a component in recruitment and retention. Poorly conceived or communicated policies will frustrate or confuse employees. In turn, that frustration can have a negative impact on morale and may even end up resulting in legal disputes. We thus counsel all employers to craft PTO policies clearly, if in a way calculated to protect the employer’s interests. The distinction between as between vacation and sick time off is one such instance. Indeed, however an employer distinguishes between the two in company policy, it should provide ample notice to and train its employees to reduce the likelihood of misunderstandings. Moreover, regardless of the practical utility of a given categorization, once an employer elects to classify PTO as vacation, sick, or personal, it is bound by that classification. Thus, as a general matter, if the employer designates time off as sick leave, as a practical matter, it may not subsequently characterize the same as a vacation benefit. As a corollary, employers that synonymize PTO with "vacation" should do so throughout all company materials (such as employee handbooks, corporate policies, etc.). Where a specific time off category is further broken down into subcategories, such as 2-week vacation, sick time, and personal time, distinctions should be retained in company materials, and the terms formally defined, because this is where the opportunity for miscommunication is the highest. Among other things, the employer should clearly articulate whether sick time is expected to be used first, or to just run concurrent with vacation/PTO time. In addition, the employer should post and communicate the particular procedures for requesting PTO.
Adherence to Statutory Requirements
For instance, in the case of unused vacation time, employers should ensure that unused vacation time is paid out upon termination of employment as noted above. By way of example, in the case of an employee who has accrued 4 weeks of vacation in accordance with company policy, and whose employment is terminated, does that employee get paid for all 4 weeks when the vacation is taken? Or is the employer required only to pay 1 week? The employer has to be careful here. In Florida, unused vacation is not required to be paid out whenever an employee quits or is fired. However, if, per company policy, vacation is paid out when taken, the employer may not subsequently dispute payment, absent an offsetting unpaid leave of absence, or some similar scenario.
Equal and Non-Discriminatory Application
In addition, to avoid the potential for claims of disparate treatment with regard to PTO, this application must be equal and non-discriminatory across all classes of employees. For instance, should the firm hire a new employee into a department at a managerial level above another recently hired employee in that same department, it should make every effort to make comparable PTO benefits available to both? This means that PTO policies must conform to federal and state law, but they must also be equal and non-discriminatory in nature.

Common Issues and Solutions

Despite the best of intentions, a number of complex issues can arise when the Florida law regulating PTO is applied to the workplace. This section discusses some of the more common problems, some strategies for resolving them, and tips on how to maintain compliance with the law.
Problem 1: Employees don’t want to use PTO.
One common issue that arises is that employees don’t want to use their PTO in the year in which it is earned and instead either want to carry it over to the following year or convert it into a cash payment. Other employees want to transfer unused sick days into their vacation pool or vest at retirement. Many PTO plans are crafted to provide employees maximum flexibility in the use of their PTO. In addition, Florida law does not limit PTO, other than the requirement to carry over earned but unused vacation and sick days. Nevertheless, employers have encountered these requests and should be prepared to deal with them in advance. The best way to deal with these requests is to ensure that your policy meets the employee’s requests. The employer can always be more generous than mandated by law and can also provide options to earn more PTO by working extra hours or extra days.
Problem 2: Employees gamble their PTO allowance and lose.
Some employees may seek to use their vacation just before they submit their resignation letter. If their employment comes to an end before the end of the vacation period, the employer could have a problem when it goes to pay the cash value of the unused PTO balance to the former employee. The key to avoiding this problem is coordination between the employer and the employee. The employer can instruct the employee to take a planned vacation on dates that will not interfere with operations (for a missed deadline, etc.). The employer then can require the employee to submit and confirm that the PTO request is for vacation and is not connected with any final termination activity. This will address the employer’s concerns about payout and also allow the employer to better monitor use of PTO.
Problem 3: Employees have more paid vacation time than they can use in a year.
Like Problem 1, this may result from how the employer structures its PTO policy. To avoid this issue, the employer can use the "blanket" policy described above and/or pay for unused vacation time not taken before a specified date at the end of the year. The employer must keep in mind that the latter might require additional thought if an employee is using PTO for a valid purpose (such as illness or for family emergencies) and begins to accrue more managerial status. Employers are not required to give vacation time generally, but it is a good practice to do so to promote a healthy work-life balance and to allow employees to recharge.
Problem 4: Employees’ PTO use and patterns are unpredictable.
Unfortunately, there is no cure for the hiccups inherent in human nature. Whether at work or not, people can fall ill, experience personal tragedies, or find that their plans suddenly change for reasons beyond their control. The only solution to this issue is to plan ahead and give both you and your employees more control over your respective lives and schedules. Who knows? Maybe giving someone more latitude will result in extraordinary productivity and a stellar work product. If so, that will be good for everyone and the cost of it will be offset and justified.

Future Developments in Florida PTO Laws

Pending legislation also adds uncertainty to future Florida PTO laws. Recently, a number of proposed bills relating to paid time off have gained traction in the legislature. While most have not passed as of this writing, they indicate a continuing interest in further regulating paid time off:
SB 164 – Leave to Care for a Military Servicemember
SB 164 would provide that any employer that does not provide a returning individual, who is a member of the Florida National Guard or US Armed Forces Reserves, with a written statement outlining all accrued benefits and reinstatement rights is liable for lost wages to the individual. If reinstatement is not possible, the employer may be liable for damages up to 60 days of the individual’s salary and benefits, and additional compensation for lost wages. Lost wages does not include any form of vacation or PTO. The bill defines "benefits" to include items afforded to returning individuals under current law, such as sick leave.
SB 162 – Return to Work Opportunity Act
This proposed legislation would exclude "returning individuals," who were leaving employment to enter the military or the Florida National Guard , from certain requests to confirm eligibility for re-employment. It would prohibit employers from refusing to place a returning individual in a vacant position for which the individual is qualified, or placing a returning individual in a position of lesser status or pay, unless a requested position has not yet been vacated. The bill is an effort to ensure returning individuals are treated equally to those on a voluntary leave of absence.
SB 166 – Family Leave, Healthcare Flexibility, and Petition for Workforce Fairness
SB 166 is a comprehensive bill addressing various issues relating to time off. The bill moves the unpaid leave provisions of FMLA currently in F.S. § 110.221(2) to Title X of the Florida Statutes. The bill adds to that section of the Florida statutes a requirement that the leave granted be paid time off if the employee has accrued and unused personal or earned sick recreational leave. Importantly, the bill provides that if the employee does not have the full time period of leave accrued, then only the accrued portion will be paid, and the remainder will be unpaid. Another part of the bill creates the "Florida Paid Time Off Task Force," which will study "the feasibility of implementing a paid family leave" program and analyze the financial impact on state programs like Medicaid and the Unemployment Compensation Trust Fund.