When the festive period finally arrives, workplaces across the country veer wildly from routine, often enforcing week-long breaks – but can you legally require your employees to take more than the statutory holidays? HRM asked two employment lawyers for their expert advice.
“Employers can make employees take vacation at Christmas but only if they make an employee take an entire week of it,” says David Law, partner at Gowlings. “They can’t cherry pick days here and there.”
Employers are also required to give fair warning to their employees if they plan to schedule vacation days, says employment lawyer Laura Morrison.
“They would have to give employees notice of about two weeks but realistically employers would have to inform their employees well in advance of the Christmas holidays,” warns Morrison.
“Because the holidays fall at the end of the year they need to inform their employees on when they can take their holidays so they don’t find themselves at the end of the year with employees who don’t have enough holidays banked yet to take the holiday,” she explains.
“If that happens, it becomes an issue of are you requiring your employees to take these days unpaid,” she adds.
If that is the case, there is a provision that employers could potentially use to get around the tricky situation.
“There is a provision in most provinces for something called a temporary lay-off,” reveals Law. “This is where the employer can notify the employee that they’re letting her go for a short period of weeks – a maximum of 13.”
According to Law, employers could potentially suspend employment, without pay, for a period of anywhere between one day and 13 weeks without triggering obligations that the employee has been fired.
However, this option is far from fool proof.
“The province of Ontario says an employer can lay an employee off for up to 13 weeks and they haven’t fired her as long as they bring her back within that period of time,” says Law, “but the common law says the minute she leaves the door she’s fired.”
This disparity, Law says, illustrates the difficulties of living in a country with two different sources of law on the same topic.