5 key questions on vacation time with COVID-19

‘Employers do have a lot of sway when it comes to picking and choosing when their people can take time off’

5 key questions on vacation time with COVID-19

With so many workers being laid off or working reduced hours, vacation time is becoming one of the hot-button issues facing employers and HR during the pandemic.

Do they have the right to force workers to take vacation time? Can time be carried over into the following year?

These and other questions were put to Richard Johnson, partner at Kent Employment Law in Vancouver, who provided Canadian HR Reporter with some insight.

Q: Can employers force employees to take vacations at a certain time?

A: “Generally, they can. A lot of employers don’t know this but there are two entitlements when it comes to vacation under the legislation: you have an entitlement to vacation pay, and you have an entitlement to vacation time and, generally, an employer can ‘force’ vacation time… you’ve got to be reasonable in the way that you levy this against employees.

“[The employer] can look at the business needs and say, ‘We need you to take vacation at a certain time during the summer’ or ‘We’ve already got three people scheduled to be off, you’ve got to work around that.’ Employers do have a lot of sway when it comes to picking and choosing when their people can take time off.

“You’ve got to make sure that people take their legislated minimum time off every year, it’s a must that they get at least two weeks or three weeks off a year.”

Q: What about vacations and leaves?

A: “One of the concerns right now is that employers can’t somehow get around their legal obligations, their duty to accommodate a leave, by forcing vacation. Let’s use maternity leave as an example. If somebody wants to take a full year for maternity and parental leave, an employer can’t get around their obligation to provide the full year by forcing vacation during that period of time. That’s the one thing where it becomes a bit of an issue: you can’t force vacation use.

“It’s similar to a COVID leave right now but if they’re on a layoff, then typically the employer can’t somehow get around its obligation by saying, ‘This is vacation time’ unless the employee wants to use vacation as opposed to some other entitlement.”

Q: What happens if an employee refuses to take employer-mandated vacation time?

A: “If an employee refuses their vacation allotment, it’s really up to the employee to press their rights. The employee would go off to employment standards, the Ministry of Labour, and go through an employment standards complaint process, and that’s how they would enforce their rights because it’s driven by the legislation, it’s a mandated legislative issue.

“Only if it’s in a written contract of employment could the courts enforce it but, generally, minimum employment standards legislation has to be dealt with through an employment standards complaint.”

Q: Can employers temporarily allow for carryover vacation because of the pandemic?

A: “It’s coming up a lot, this issue of you can’t contract out of employment standards, and so the technical answer is no, you can’t contract out of employment standards, you’ve got to either provide the time off or the pay that the person is entitled to, you can’t roll it over.

“I expect that the employment standards offices will be a little bit more graceful in enforcing this given the pandemic, depending on how long it lasts. But I wouldn’t want any employer to rely on that in saying, ‘Let’s just roll it over.’

“By and large, you have to give the minimum employment standards entitlements to the employee in the year in which they’re to be paid or provided without rollover. But if you’re absolutely pressed, and if an employee is off for the remainder of the year due to COVID and you can’t actually provide them with their vacation accrual, the only option you have is to keep it in a bank. I would certainly be keeping track of it so the employee gets their fair vacation next year when they return.”

Q: Can an employer force an employee to take preapproved vacation time?

A: “An employee may have plans with the employer to take vacation in July but [if] because of COVID, they’re off on a leave or on layoff for that period of time, it would be unfair for the employee to lose that vacation time, it should be preserved by the employer.

“Basically, you’d scrub the vacation plan, keep that vacation time for the employee and preserve it unless they want to use it. Unless, for some reason, they say, ‘You know what, for those two weeks, please consider me on vacation.’ If they said that, that’s fine, but without their consent otherwise, you would just take that, put it in the bank and leave it for the employee.

“The unfortunate thing is [the outbreak] came upon us without much of a lead-up so the best thing you can do is if it doesn’t look like they’re going to be able to use actual vacation time because they’re on leave, then you preserve it, put it in the bank, make sure that you’ve got that earmarked for the employee for when they are finished their leave and they can return to work and then they can use it.”

Q: Does vacation time accrue during a leave period?

A: “It does but the big issue is what do you do with someone who by contract is entitled to paid vacation? A lot of employers will come along and they’ll take care of both obligations by saying, ‘You get paid vacation’ so, technically, the employee will be accruing paid vacation while they’re on leave. I just think that’s a point we’re clarifying a lot with employers. You do get an accrual during a time like this.

“They may be getting time off but it’s actually earmarked as something else. It’s an obligation. Don’t just think you’re using the vacation entitlement up while somebody is away from the office.

“It’s important to flag that the employment standards offices… will enforce a contract that has a greater entitlement. Most employees are entitled to two weeks’ vacation and at five years, it goes to three weeks and they get four per cent and then at five years, it goes to six per cent. If you have set up with an employer to give you six weeks from the outset, or five weeks from the outset, the Employment Standards Branch will hold you to that deal.

“The employee gets the greater of either the minimum employment standards amount or what you’ve gotten your contract. You look at your contract, and then look at the statute and say, ‘What’s the greater of the two?’ And that’s what you use.”

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