Your COVID-19 and Winter Vacation Questions Answered

Written on behalf of Peter McSherry

Can your boss force you to take a winter holiday? What happens if you get COVID-19 while in the tropics? We take on these questions and more in today’s blog post.

In the colder months, many Canadians travel south of the border to Florida, Mexico, the Caribbean and beyond. In choosing when to go and how much time to take off, individuals may consider prices, availability and lately pandemic travel restrictions. When it comes to which dates to pick, most Canadian employees will also have to consider which dates their employer may approve or decline.

Employee Vacation Entitlements in Ontario

An employee’s vacation entitlement may depend on their individual contract of employment, workplace policies, or in a unionized work environment, their collective agreement. However, while employers can always offer greater benefits, all non-unionized employees (in provincially regulated businesses in Ontario) have their basic employment rights set out in the Employment Standards Act, 2000.

The first thing to know is that there are a few different components to consider. One is statutory holidays and statutory holiday pay. These are the days off that we all receive on the same dates (like July 1^st for Canada Day) when most businesses close. These holiday days are separate and in addition to your vacation entitlement, which is the focus of this blog.

The second thing you need to know is that when we talk about a right to vacation, we are really talking about two different things – vacation pay and vacation time.

Vacation Time

Vacation time refers to the right to be absent from work without penalty. While an unauthorized absence may warrant discipline or termination, an authorized absence in the form of an approved vacation is a protected right that you cannot be punished for exercising.

Vacation time may vary depending on company culture and policies, but the minimum vacation time entitlement is based on how long you have worked for your employer. The minimum entitlements are as follows:

• Less than 1 year of service = 0 weeks of vacation time
• 1-5 years of service = 2 weeks of vacation time
• 5 years of service or more = 3 weeks of vacation time

Vacation Pay

Vacation pay refers to your right to be paid money in addition to your regular wages for your vacation time. Some employees, particularly salaried employees, just take their vacation time and receive their regular wages during their vacation time, which takes care of vacation pay.

For other employees, particularly employees who are paid on an hourly basis, they may receive vacation pay as a percentage of their earnings and then receive unpaid vacation time. Both are lawful ways to pay vacation pay.

Common Mistakes Employers Make with Vacation Pay

Employers can make deliberate or inadvertent mistakes in calculating vacation pay, which can be harmful to employees who are not receiving their appropriate compensation. This is also risky to employers who are out of compliance with the Employment Standards Act, 2000 and can lead to Ministry of Labour investigations or class action litigation.

Here are some of the common mistakes employment lawyers regularly see employers making:

• Misclassifying employees as “contractors” and failing to provide them with vacation time and/or vacation pay;
• Underpaying vacation pay for sales employees, as the vacation pay percentage should be based on all wages earned including commissions;
• Failing to pay vacation pay accrued to a wrongfully dismissed employee in a timely manner; and
• Errors in calculating partially completed years of service and other administrative errors.

Who Decides When Your Vacation Happens?

The short answer is technically your employer can choose to schedule your vacation at a time that is appropriate for them. However, in most healthy and productive workplaces, employers establish a fair process to ensure vacation time is scheduled at a mutually agreeable time. There are also some employment standards requirements that your employer must comply with such as permitting you to take your vacation time in complete weeks if you would like to do so.

When an employer is unfair or unreasonable in scheduling vacation time, this may be part of a broader issue with your employment such as harassment, discrimination or potentially even a constructive dismissal.

What If You Get COVID-19 on Vacation?

Life during the pandemic means enduring ever-changing travel restrictions, cancelled flights, and new variants emerging every few weeks or months. This can wreak havoc on even the most carefully planned vacation or stay-cation. Many employees and employers are asking what this means if an employee cannot return to work after a vacation due to contracting COVID-19 or as a result of COVID-19 restrictions.

Employees have a statutory right to Infectious Disease Emergency Leave, which is a job-protected unpaid leave of absence introduced as part of the Ontario Government’s efforts to fight COVID-19. Employees have a right to this leave of absence for time off related to COVID-19, including situations where the employee is:

• Receiving treatment or in quarantine due to a COVID-19 infection;
• Directly impacted by a COVID-19 related travel restriction; and/or
• Is providing care to a family member receiving treatment due to a COVID-19 infection.

As this is a new leave of absence, there is still some discussion about some of the grey areas. As it relates to travel restrictions, the Ontario Government has provided some guidance on what “directly impacted means”. It occurs when an employee is out of Ontario and their means of returning home (a cruise ship docking, or an international flight) is delayed or cancelled due to a travel restriction and there are no other reasonable means for returning home. With respect to what is reasonable, the Ontario Government provided the following guidance:

“What is reasonable will depend on the circumstances. For example, an employee was vacationing in Mexico City when Canada banned all flights from Mexico for two weeks. The employee could rent a car or take a series of buses and trains to return to Ontario but that would not be a reasonable expectation in the circumstances.”

Current reporting indicates a number of flights are cancelled due to airline staff becoming infected or in quarantine, because of COVID-19 and airlines have insufficient staff to continue their currently scheduled flights. Potentially impacted employees may seek to rely on the Infectious Disease Emergency Leave if they require a leave of absence and some employers may argue it doesn’t fit within the parameters of the legislation. If an employer were to terminate an employee’s employment under these circumstances, it may be a wrongful termination.

Contact Peter A. McSherry Employment Lawyer for Advice on Vacation Issues and Wrongful Terminations

If you are an employee and want to understand your rights, or an employer looking to ensure you stay compliant with employment standards, contact the offices of Guelph’s Peter A. McSherry Employment Lawyer. We regularly assist employees with wrongful terminations and labour issues. Contact us online or by phone at 519-821-5465 to schedule a consultation with Peter A. McSherry.