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Vacation Time Piling Up in Lockdown? It's an Employer's Right to Decide When You Can Use or Lose it

Published: 09 Jun 2021

Generally, for morale reasons, employers oblige employees in the choice of vacation times, but they do have the right to dictate when it's taken.

Can an employer declare your vacation pay forfeited? Variations of this and other questions around vacation pay are popping in my inbox now that summer is coming and people will soon be getting out of lockdown.

My answer is employees are entitled to their minimum vacation entitlement under employment standards legislation, which varies by Canadian province and for federally regulated employees. Above that minimum, employers can declare it forfeited if it is not taken within a certain time frame.

Even the employment standards minimum vacations must be taken within a certain time frame, depending upon the legislation in each province, but it must be paid-out by the employer in any event.

One must also remember during these times that although vacation time continues to accrue, if an employee is not paid wages because they are on layoff, leave of absence or some other arrangement, they have no right to be paid any vacation pay for the time they were off. Vacation pay is based upon a percentage of actual earnings, for example four per cent or six per cent.

Many employers are assisting employees by paying them outstanding vacation during their layoff. However, this is at the employer’s discretion as they have the right to dictate vacation time. Generally, for morale reasons, they oblige employees in the choice of vacation times, but I have clients who have annual shutdowns and everyone is required to take their vacations during that period.

Some other questions in my inbox:

Q: What can an employer do to fight against a declared medical exemption?

HL: A number of employees will likely be arguing that they are medically exempt from vaccines and will provide notes from obliging GPs to that effect. First, the medical issue preventing vaccinations cannot be trivial; it must represent a substantive health risk. When an employee takes that position, I recommend to my employer clients that the employee’s doctor make such a declaration, letting them and the employee know that you will have a specialist – in the area of the purported disability – review and opine on whether the position is legitimate for that employee. You could, in some circumstances, ask the employee to attend an independent medical examination if this is a serious matter for that employer and they wish to have all employees vaccinated, whether for everyone’s health or to attract and retain customers.

Q: Can you put a leaflet up in the workplace, at your desk, supporting same-sex marriage?

HL: You can, if you want to engender a potential human rights complaint. Discrimination goes both ways. You cannot discriminate against people based on their sexual orientation, gay or straight. The more likely issue is that you will run afoul of your employer’s code of conduct, which might preclude such propaganda in the workplace so that no one is offended.

Q: Can you pay different employees different benefits?

HL: Employers can indeed put every single employee on a different benefit plan. This is obviously not viable as benefit providers require the same plan for everyone. But employers in financial difficulty might decide that new employees will not receive benefits. Removing benefits from existing employees, depending upon their value relative to the employee’s overall remuneration, could be a constructive dismissal. Of course, you can’t discriminate in the provision of benefits on human rights grounds: race, creed, sexual orientation, etc.

Q: Can you record your conversations with your boss?

HL: This is complicated. It is not contrary to the criminal code to record your own conversations with anyone at any time. However, it hardly makes for a harmonious workplace if employees and employers are concerned their conversations are being taped, and it could be seen as an intrusion upon privacy rights. I recommend policies prohibiting it and have argued, in cases, that surreptitious tape recording is cause for discharge. But there are occasions when it is necessary, such as when homophobic or racist comments are being made. Or, you are being screamed at and HR doesn’t believe you, so you record it the next time and present your evidence. It is a matter of judgment in each case.

By Howard Levitt. PHOTO BY GETTY IMAGES/ISTOCKPHOTO. Article originally appeared in the Financial Post: https://financialpost.com/fp-work/howard-levitt-vacation-time-piling-up-in-lockdown-its-an-employers-right-to-decide-when-you-can-use-or-lose-it

Got a question about employment law during COVID-19? Write to Howard at levitt@levittllp.com.

Howard Levitt is senior partner of LSCS Law, employment and labour lawyers. He practices employment law in eight provinces. He is the author of six books including the Law of Dismissal in Canada.

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Howard Levitt

Firm: LSCS Law
Country: Canada

Practice Area: Labour and Employment

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