Is there a liability risk if employees regularly have to put in extra hours to get their work done before they take vacation leave?
Question: Is there a liability risk if employees regularly have to put in extra hours to get their work done before they take vacation leave?
Answer: Vacation time is designed to provide employees with an opportunity to rest, spend time with their families and friends, and recharge their batteries away from the workplace. If an employer creates a work environment where employees need to put in significant extra hours in order to get away on vacation, the employer may find itself exposed to a variety of challenges, such as increased sick leave and overtime claims, poor workplace morale, and difficulties with recruitment and retention.
Employees who work overtime hours leading up to a period of vacation will generally be entitled under employment standards legislation or collective agreement provisions to be paid for those hours at premium rates, unless they are exempt from overtime pay.
Employers are entitled to exercise discretion in the best interests of the business when scheduling employee vacations. An employer is well advised to schedule vacations at times where business demands do not require employees to work extra hours before or after taking vacations, or where there is sufficient coverage for the absent employee.
Employers should ensure that employees have the opportunity to take their annual vacation regularly. In some jurisdictions, employment standards legislation puts the onus on the employer to make sure employees appropriately schedule their time off.
In British Columbia v. British Columbia Nurses’ Union, [1993] BCCAAA No. 371 (Munroe), the collective agreement contained language which protected against undue increases in workload caused by absences due to vacation. The arbitrator found that this language applied both to employees covering for the absent employee and to the workload of the absent employee upon their return from vacation. The arbitrator stated that it was not sufficient for the employer to say “we do not expect you to do more than is reasonably possible.” Instead, the employer was found to have a positive obligation to ensure it had arranged for sufficient vacation coverage.
Whether or not protection from excessive workload due to vacation is explicitly contemplated by the terms of a collective agreement or employment agreement, employers should set expectations with employees regarding what must be completed before their vacation, what can be delegated, and what can wait for the employee’s return. Agreeing to overtime arrangements in advance may limit the employer’s liability and help ensure that parties respect legislated hours of rest and meal breaks, when necessary.
As employers are struggling to manage work hours of employees working remotely due to the pandemic, it is more important than ever for employers to communicate expectations and set boundaries on work hours clearly.
For more information see:
- British Columbia v. British Columbia Nurses’ Union, [1993] BCCAAA No. 371 (Munroe) (B.C. Arb.).
