As part of your notice period, can you take your vacation or sick time?

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Q:  I am preparing to accept another job soon.  I want to quit and to use my vacation days as part of my two-week notice.  I have six days of vacation time that I am owed.  Then I want to use four days of sick time to get me to the 10 days.  As I see it, I am due five sick days under Mass. Law.  Is this acceptable?

A:  Congratulations on your new role!  It is a brisk hiring environment now in Massachusetts, and across New England.  I have to assume a few details before I share a response.  I am assuming that you are an “at-will” employee and that you are not covered by a collective bargaining agreement.

To confirm my response, I consulted Robert Shea, an experienced employment lawyer and partner at Beck Reed Riden LLP in Boston.  Shea shares “It’s a maybe for the vacation time and a no for the sick time.  Pay for accrued, unused vacation time is considered as ‘wages’ under Massachusetts state law and must be paid out when you leave the organization.  If you prefer to use your accrued vacation during your 10-day notice period, you may be able to do so but your vacation time request presumably will be subject to your employer’s policy for approving vacation time requests.  Most employers have a policy that vacation days must be pre-approved before they can be taken.  Potentially, your employer may decide not to approve your vacation request because it wants you to be at work during the 10-day notice period to assist in transitioning your job responsibilities.”

With respect to earned sick time, this time is treated differently under Massachusetts law.  Shea advises “Massachusetts employers are not required to pay out unused earned sick time at termination.  Further, and in response to your specific question, earned sick time is to be used only for one or more of the purposes set forth in the law (e.g., to care for the employee’s physical or mental illness, injury, or medical condition) and using it simply to take time off during your 10-day notice period is not one those purposes.”  In short, earned sick time is not an entitlement and there are specific reasons, outlined in the Massachusetts law, which would enable an employee to take this time off.

Beyond the legal response, your employer may feel like you did not resign in a professional manner.  Oftentimes, a two-week notice is helpful, to tie up loose ends and train others in some of your day-to-day tasks.  It also provides your employer with some notice so that they are able to search for your replacement.

Pattie Hunt Sinacole is a human resources expert and works for First Beacon Group in Hopkinton, an HR consulting firm. She contributes weekly to Boston.com Jobs and the Boston Sunday Globe Money & Careers section.

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