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Can your employer force you to take vacation?

Posted by admin on June 16, 2009 in Jobs

With the summer right around the corner,  some employers are thinking of shutting down their businesses and going dark since it is a slower season. A reader in a such a situation was given the choice of either taking leave without pay or being forced to take a vacation (I understand that this is a non-unionized work-place) and the question was what would happen if the shut down was for so long that you had a negative vacation balance.

The question raises a much larger issue of what an employee’s rights are in these types of situations. I ended up calling the Ontario Ministry of Labour help line to get some answers; because there are exemptions to certain industries (for example, the hospitality industry and construction industry have particular rules), I asked as a plain old white-collar office worker. Just remember that every jurisdiction has a different set of laws about employee rights which are sometimes superseded by an employment contract or collective bargaining agreements. As usual, obtain independent legal advice about your situation.

Here are some tidbits from the Ministry:

1. A temporary lay-off is a layoff of not more than 13 weeks in any consecutive 20 week period or a layoff of more than 13 weeks in any consecutive 20 week period if the layoff is less than 35 weeks in any consecutive 52 week period. In plain English, the employer cannot lay you off for more than 13 weeks without be considered under the law to have terminated your employment, triggering the appropriate notice/payment in lieu of notice/severance provisions. If you are never recalled, the temporary lay-off period is calculated within your notice/payment in lieu of notice/severance payment. The employer cannot give your position to someone else during this time and it must pay for your benefits.
2. If your job has changed significantly and negatively without your consent, you are deemed to be constructively dismissed (which includes “quit or be fired” demands). In this case, the employer has to pay you the appropriate notice/payment in lieu of notice/severance based on your previous salary before you are paid at your new lower salary (the theory being you have been terminated in one job and need to be paid severance before you commence the new job). Constructive dismissal is a very tricky area of the law; as such, please consult a lawyer if you think you may have been constructively dismissed.
3. In Ontario, the employer shall determine when an employee shall take his/her vacation (unless you have a contract that states otherwise). In other words, the employer can force you to take vacation. If you have worked full-time for more than 1 year for an employer, you have an entitlement to 2 weeks vacation per year. Thus, to answer the original question, you cannot be legally penalized for taking more vacation than you are entitled to by having the employer deduct it from next year’s vacation entitlement if you only have 2 weeks vacation.  If you have more, the more practical consideration is that the employer is probably triggering a employee revolt if this try this stunt.

What I have heard a lot this year is some employers are resorting to the temporary lay-off route to free up cash. What also makes this move attractive for the employer is that if you find another job during the temporary lay-off period, you are deemed to have quit and the employer most likely does not have to pay you severance.

Depending on the situation, one may be better off negotiating a severance package if you are informed of a temporary lay-off rather than sticking it out and waiting to be recalled. Factors to consider include: likelihood of the business surviving long-term, your job prospects, the benefits your employer gives you during the lay-off period, how much you like your job etc.

As usual, the above is informational without reference to context, specific to Ontario and there are always exceptions to the general rule. Of particular note, the situation may be different if you have an employment contract (look there first then look at the statute).

Most jurisdictions have employee informational hot-lines. I would encourage everyone to call and ask questions about your rights.  They are typically very helpful. Good luck.