Question: Can we force employees to use their allotted vacation days if there’s a deadline to use them? Can an employer tell an employee not to show up to work even if she resists taking the vacation days?
Answer: The questions can be addressed in two parts: Can management oblige employees to take vacation? And what redress does management have if an employee resists taking vacation?
Employment standards legislation addresses the first part. While legislation varies slightly from jurisdiction to jurisdiction, the general law on vacation is consistent. Typically, legislation confirms the employer’s right to decide when an employee will take vacation. Legislation typically specifies a “deadline” by which the vacation should be taken.
For example, the Ontario Employment Standards Act, 2000, reads: “The employer shall determine when an employee shall take her vacation for a vacation entitlement year, subject to the following rules:
•The vacation shall be completed no later than 10 months after the end of the vacation entitlement year for which it is given.
•The vacation shall be a two-week period or two periods of one week each, unless the employee requests in writing that the vacation be taken in shorter periods and the employer agrees to that request.
It is within the purview of employers to schedule or “force” vacation. Some jurisdictions require that employees be provided with advance notice of a “forced” vacation. Nova Scotia legislation, for example, requires employers to provide one week’s notice.
Further, employers that force vacation should do so prior to the applicable “deadline” from the end of the vacation entitlement year set by employment standards legislation.
For example, the Nova Scotia legislation echoes Ontario with a 10-month deadline, whereas Alberta and British Columbia provide for a 12-month deadline. In any instance, it is important for employers to review and act in accordance with the applicable legislation, and to ensure their actions are not only in accordance with the law but with their own policies and practices as well.
Additionally, employers often ask about a “use it or lose it” policy. Typically, these policies may only apply to vacation time and pay that is in excess of the minimum entitlements under employment standards legislation. For example, if an employee is entitled to two weeks’ vacation under his province’s legislation and his employment contract grants him three weeks of vacation, the employer may invoke the use it or lose it policy with respect to the extra week of an employee’s vacation and vacation pay entitlement or to unused vacation after the statutory period to use accrued vacation has passed (the 10-month or 12-month deadline referenced above).
Note there is varying case law with respect to use it or lose it policies in some provinces (such as the 2004 Ontario case Geluch v. Rosedale Golf Assn.). Generally, these policies can be a good idea because there have been cases where a dismissed employee presents a big “vacation bill” on the way out the door.
The second part of the question can be answered more directly. Absent any contractual provisions to the contrary, it is within the scope of management to control scheduling and to determine vacation periods. It follows that an employee who shows up for work outside a designated schedule is disregarding that authority and, therefore, may be sent home and subject to discipline.
For more information see:
• Geluch v. Rosedale Golf Assn., 2004 CarswellOnt 2621 (Ont. S.C.J.).
Brian Johnston is a partner at Stewart McKelvey in Halifax. He can be reached at (902) 420-3374 or firstname.lastname@example.org.
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