If promised, vacation must be granted. Although no District of Columbia law requires private sector employers to provide employees with vacations, paid or unpaid, most employers do offer their employees some version of vacation.
It is important for employers to remember that if they “promise” vacation, they may be legally bound to provide it—and that a binding promise does not require embodiment in a formal employment contract. D.C. courts have ruled that, under some circumstances, an employer's assurance of paid vacation time, whether made in an employee handbook, given orally, or simply understood as a matter of consistent practice, may constitute an implied contract, which is binding and enforceable.
Use it or lose it. There are no statutory provisions addressing the issue of whether an employer may institute a “use it or lose it” policy, but the D.C. Court of Appeals has ruled that employees who are notified expressly that there is a limit to the amount of leave time they may accrue and who continue to work without protest, have accepted the new terms of employment.
Accrual method. Employers are free to devise their own systems for vacation accrual. There are several different commonly used options:
• On a monthly basis
• On a pay-period basis
• Upon completion of a 6-month or 12-month period
It is important to be clear and unambiguous when drafting such policies. If the policy is intended to ensure that employees work the entire accrual period to earn their vacation days, it should state clearly that employees will not be entitled to pro rata payment if they leave partway through the period. Remember that any vagueness in the policy is likely to be construed against the employer.