October 21, 2020

Thinking of heading south? Check with your employer

Winter will soon be upon us and when we’re locked in the grips of bitterly cold weather, many Canadians start contemplating a sandy beach in a warmer climate. But before you book your Jamaican holiday make sure your boss has approved your plans.

The COVID-19 pandemic has disrupted our lives in countless ways and now, more than ever, many of us are in need of a vacation. But while you may be entitled to a week off, it doesn’t mean your employer will be on board with any international travel plans.

Vacation schedules are always at the convenience of the employer. There are Employment Standard Act (ESA) guidelines about how long employees can bank vacation time and when they have to use it. But an employer has the right to prevent an employee from taking a vacation. This becomes especially important to remember now that any international travel must be followed by a 14-day self-quarantine period necessitated by the coronavirus.

Vacation Entitlement

According to the ESA, workers with less than five years of employment receive two weeks of vacation time after each entitlement year while those with five or more years of service earn three weeks.

While it is certainly true that workers must be allowed to use the vacation they have earned, they cannot arbitrarily dictate when to take it. To meet their operational needs, it is the employer’s right to decide when staff is allowed time off. Some companies shut down for a set period, for example, and every worker goes on vacation at the same time. Others restrict the number of people taking time off during peak periods of production.

A happy worker is a productive worker so many employers consult with their staff to come up with a vacation schedule that benefits both sides. However, these are exceptional times. If someone wants to leave the country for a week, they are expected to self-quarantine upon their return. That means a worker could be off the job for three weeks if they are not able to work remotely from home. This can put undue strain on a company, especially during these uncertain times.

It’s always helpful for an employer to have a handbook outlining its vacation practices. It could be problematic, for example, if the company routinely allows employees to take a vacation whenever they want, then suddenly shifts gears and becomes more stringent and less accommodating.

Review Workplace Policy

If employers are foreseeing issues with vacation because of the pandemic, they should review their policy to ensure it is consistent with their expectations. Having a procedure in place that states vacation requests are subject to operational needs alleviates uncertainty. It might also be in an employer’s best interest to strongly advise workers to avoid international travel during the pandemic. If they do choose to travel and are unavailable to work during the 14-day quarantine period, the company may grant the time as unpaid leave. 

While I don’t anticipate many disputes over whether someone can travel outside the country for a holiday, I do see a potential problem if someone requests a leave of absence to travel overseas to tend to a family member. Those cases are always tricky, and I think in the context of a pandemic it can be even more delicate because you have to add on that quarantine period. 

If the employee is saying they need to take a leave of absence to go to India because their father is ill, denying that request could be considered discriminatory on the basis of family status, contrary to the Ontario Human Rights Code.

Labour Law Changes

Certainly, the spectre of COVID-19 has led to changes in labour laws to deal with the new employment reality. For example, under infectious disease emergency leave provisions, the Employment Standards Act provides job protection for employees unable to perform their duties because they are: 

  1. under medical investigation, supervision or treatment for the coronavirus;
  2. acting in accordance with an order under the Health Protection and Promotion Act or under the Reopening Ontario Act;
  3. in isolation or quarantine or acting in accordance with public health information or direction;
  4. directed by the employer not to work due to a concern that the employee could spread COVID-19 in the workplace;
  5. providing care or support to a specified individual for a reason related to COVID-19; or
  6. prevented from returning to Ontario because of travel restrictions.

The Ontario Human Rights Code also includes protections for workers, which state “employers cannot discriminate in hiring, promotion, training, benefits, workplace conditions or termination because a person is caring for a family member.

According to the Code, employers have a legal duty to consider changes to accommodate workers with caregiving responsibilities. Examples of accommodation include:

  1. Providing flexible scheduling;
  2. Allowing employees to take leaves of absence to care for family members who are ageing, ill or have a disability;
  3. Allowing alternative work arrangements.

Keeping the lines of communication open is essential for both employers and employees as we navigate through this pandemic crisis. Seeking legal advice can also help prevent problems before they arise.