Can An Employer Refuse Vacation Time In Ontario?
Yes. As discussed below, in Ontario, employers can refuse an employee’s request to take vacation time on specific dates.
Vacation time rules in Ontario are contained in the Employment Standards Act, which is the minimum standard of employment law in this province. For example, the Employment Standards Act sets the minimum wage.
How Much Vacation Time In Ontario?
Regarding vacation time, the Employment Standards Act requires that employers must provide employees with five or fewer years of service with at least two weeks of vacation time per year after one year of employment and that they must provide employees who have worked for five years or more with at least three weeks of vacation time per year.
When Can Employees Take Vacation Time?
The Employment Standards Act requires that employers ensure employees take their vacation within 10 months after the end of the vacation entitlement year for which it is given (i.e., 10 months after the first year of completed service and at least 10 months after every other year of completed service thereafter). In other words, an employer does not need to provide vacation time until 22 months at the latest after an employee starts work. However, most employers will voluntarily allow their employees to take vacation time well before they have reached 22 months of service. To that end, most employers let their employees use pro-rated vacation time after their first three months or even less. In any event, technically, an employer can wait until 22 months before an employee is allowed to take their first vacation.
In terms of when exactly in the year an employee can take a vacation, that will be discussed below.
Vacation Time Minimum Days?
Employers are required to provide vacation time in periods of at least one week unless the employee requests in writing and the employer agrees to allow the employee to take a vacation in increments of less than one week. In other words, an employer cannot ask an employee to take vacation time for anything less than one week (i.e., for just one or two days). Still, we should note that where an employee is provided with vacation time more than the two- or three-week minimum entitlement under the Employment Standards Act, an employer is free to schedule those excess weeks/days as short as it likes (i.e., it can say an employee can only take vacation time as just one or two days).
Read: All About Vacation Pay
Can An Employer Say When Vacation Shall Occur?
The Employment Standards Act gives the employer the absolute right to determine when an employee may take a vacation.
The law makes sense if you think about it.
For one, many employers want to restrict vacation time during certain busy periods of the year. For example, accounting firms will likely restrict vacation around tax season, night clubs will restrict vacation around New Year’s Eve and retailers will restrict vacation around Christmas.
Second, recall that employers must ensure that vacation time is scheduled and taken before the end of the above-noted ten-month period following the earned entitlement to vacation time. Thus, employers who want to avoid liability want to have the power to control when vacations are taken.
Accordingly, employers can dictate when vacation shall occur on the calendar. For example, an employer can lawfully refuse a vacation request for a specific week of the year or it can force an employee to take a vacation on a specific week of the year. Nevertheless, in all my experience, it is exceedingly rare for an employer to generally refuse vacation time outside of one or two busy times of the year. If an employer wants to remain competitive, it had better be accommodating of 99% of vacation requests.
All in all, I would recommend employers use a vacation scheduling system (even just a shared office-wide Google calendar) and institute blackout dates (if required) and a policy about how many staff members can take off vacation at the same time. And the employer should monitor the calendar to ensure that all its employees do schedule vacation at least once a year.
Summary: Vacation Time In Ontario
Employees earn vacation time after their first year of employment (but most employers allow vacation time before the first anniversary of employment anyway). Employees with less than five years’ service get two weeks’ minimum vacation and employees with more than five years’ service get at least three weeks’ vacation. When a vacation is to be taken can be dictated by the employer. If an employee requests their dates for vacation, an employer can refuse that request and dictate some other vacation time. The best way to avoid disappointment and argument is for the employer to use a shared calendar to blackout dates and ask employees to self-schedule vacation time well in advance.
Caution: All of the above information assumes there is no contract with the employee spelling out rights regarding vacation. All of the above is just minimum standards, but some employment contracts go above the minimum standards. For example, some employment contracts provide more vacation time than the minimum requirement and some employment contracts have better terms for when and how vacation is to be taken. Check your employment contract to be sure to understand your rights and obligations regarding vacation.
What happens if an employee takes vacation time above their allotted time or if they demand to take vacation time at a busy time despite their employer refusing? If an employee takes too much vacation time or takes vacation time when they were told not to, and it is not just some administrative error but rather the employee’s bad faith in the face of being expressly forbidden, then the employee has committed willful misconduct and could be terminated without notice. (see Fox, Glicksman & Co. v Reynolds (December 16, 1981), ESC 1118 (Black), and Peter Tsorovas c.o.b. Mr. Submarine v Zwicker (January 12, 1982), ESC 1131 (Betcherman)).
Jeff is a lawyer in Toronto who works for a technology startup. Jeff is a frequent lecturer on employment law and is the author of an employment law textbook and various trade journal articles. Jeff is interested in Canadian business, technology and law, and this blog is his platform to share his views and tips in those areas.