Employers have broad discretion to assign an employee’s vacation time under Ontario’s Employment Standards Act, 2000. In other words, yes! Employers can make an employee take vacation time.
☑Although the Employment Standards Act (“the Act”) does not specifically say an employer can force an employee to take a vacation, there is nothing in the Act that says employers cannot force an employee to take a vacation.
☑Therefore, employers can force employees to take a vacation.
🔍Here is what the Act says about the timing of vacation time:
Section 35 – Timing of vacation
The employer shall determine when an employee shall take a vacation for a vacation entitlement year, subject to the following rules:
1. The vacation must be completed no later than 10 months after the end of the vacation entitlement year for which it is given.
2. If the employee’s period of employment is less than five years, the vacation must 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.
3. If the employee’s period of employment is five years or more, the vacation must be a three-week period or a two-week period and a one-week period or three 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.https://www.ontario.ca/laws/statute/00e41#BK62
As such, Section 35 of the Act gives employers the right to determine when an employee “shall” take a vacation. Nothing that follows section 35 of the Act speaks to or prevents an employer from unilaterally telling an employee they “shall” take a vacation on a specific day or week(s).
Accordingly, in slow periods or in periods of challenging business times like Covid-19 lockdowns, an employer is free to ask their employees not to come in and to take a vacation.
However, keep in mind that in most cases, vacation is paid. It is not a lay-off. Still, employers have a choice when and how to pay vacation pay to an employee they force to go on vacation.
- Employers can pay the whole vacation pay annual amount (i.e. 4%-6% of all wages earned that year) in a lump sum sometime before the employee takes the vacation time they have earned; or
- Only if the employee agrees in their contract or some other signed document, the employer can pay their vacation pay on each paycheck as it accrues (i.e. 4%-6% added to the paycheck); or
- Employers can (and commonly do) pay employees their regular salary while they are on vacation instead of remitting a “vacation pay” lump sum before a vacation or a small percentage amount on each paycheck.
Jeff is an employment lawyer in Toronto. He is the Principal of the Dutton Employment Law Group at Monkhouse Law. Jeff is a frequent lecturer on employment law and is the author of an employment law textbook and various trade journal articles.