Can an Employer Ask an Employee to Work on Vacation or Return Early from Vacation?
What should an employee do if their boss cancels an approved vacation? Or if an employer requests an employee to work while on vacation? The answer may be surprising to some employees. Since the law gives employers the right to set employee vacation time, employers often have the right to change approved vacation dates if reasonably required for business purposes.
This will be circumstance-dependent. For example, unionized employees will likely have rights that protect approved vacation time. Non-union employees are unlikely to have these same protections. This means that despite any approved vacation time, a vacation may be cancelled or ended early where there is a valid work emergency that requires all hands on deck. This may include issues like unavoidable staffing emergencies or a last-minute deadline that could not otherwise be resolved.
Asking an employee to work while on vacation is also circumstance-dependent. Employees are entitled to a minimum amount of vacation time per year. Employers that demand an employee to work while on vacation may be withholding legally required vacation time. However, this will also be subject to what may be considered ‘reasonable’. Sending a few emails or resolving a quick issue is unlikely to entitle an employee to a new vacation day or pay for their work.
Employers may be on the hook for financial losses resulting from a last-minute cancellation. For example, an employee may ask for compensation for a missed flight or event. Employees may have mixed success in enforcing payment for financial losses if their employer is not cooperative.
Employers should work with their staff to come to fair and reasonable resolutions wherever possible. Unreasonably canceling or rescheduling employee vacations is sure to undermine workplace morale and employee retention.
Further, an employer that chooses to dismiss an employee for not working during their scheduled vacation time may be liable for wrongful dismissal or constructive dismissal damages. Refusing to return to work during an approved vacation is unlikely to amount to just cause. This means that while an employer may be within their rights to dismiss an employee over a vacation dispute, they must provide proper notice and severance.
What to Do When Your Boss Asks You to Work on Vacation?
If your employer asks you to work while on vacation, start by reviewing your employment contract and company vacation policies. If the request is minor—such as answering a few emails—it may not warrant legal action. However, if your employer expects you to perform significant work while on vacation, this may be a violation of your vacation entitlement under Ontario employment law.
If you feel pressured to work during vacation or believe your rights are being ignored, consider speaking with an employment lawyer. Legal counsel can help you determine whether your employer’s actions are reasonable or if they are infringing on your right to vacation leave.
What Is the Vacation Rule in Canada?
Under the Ontario Employment Standards Act (ESA), most employees are entitled to a minimum of two weeks of annual vacation time after completing one year of service. After five years of employment, this increases to three weeks per year. Employers must also provide vacation pay, which equals at least 4% of an employee’s wages earned for the vacation entitlement year, increasing to 6% after five years of service.
Vacation policies can vary by industry, employment contract, and collective agreements, and some employers offer more vacation time than the minimum standards in the ESA. Review your employment contract to understand how much vacation time you are entitled to.
Can You Terminate an Employee Who Is on Vacation?
An employer can terminate an employee while they are on vacation, but they must still follow employment law regulations. Employees on job-protected leave, such as maternity leave or disability leave, have stronger protections against termination. However, vacation leave is not job-protected, meaning an employer can dismiss an employee as long as they provide proper notice or severance pay.
If an employer terminates an employee while they are on vacation as an act of retaliation or without following proper termination procedures, the employee may have grounds for a wrongful dismissal claim. Consulting an employment lawyer can help you determine if your termination was lawful and whether you are entitled to additional compensation.
Can an Employer Refuse Vacation Time in Canada?
Yes, an employer has the right to refuse a vacation request if the timing conflicts with business operations. Employers have control over when vacation is scheduled, as long as they provide employees with their full vacation entitlement within ten months of the end of the vacation entitlement year.
That said, an employer cannot withhold vacation indefinitely, nor can they deny vacation for unfair or discriminatory reasons. If your employer consistently refuses to approve vacation requests, this could be a violation of employment standards. If you are struggling to take vacation due to employer refusals, legal guidance can help you assert your rights and determine if your employer is acting unlawfully.
Know Your Rights—Speak with an Employment Lawyer
To better understand your entitlements and obligations under employment laws, we encourage employers and employees to seek legal advice. We at Whitten & Lublin are happy to provide insight and advice into your specific circumstances and guide you more on the difference between termination pay and severance pay. If you’re looking for employment lawyers and would like more information about what Whitten & Lublin can do for you, please contact us online or by phone at (416) 640-2667 today.