Another commonly asked question during COVID-19 is how are vacation or other leaves of absences affected during this pandemic?
Can an employer order an employee to take vacation instead of laying them off?
Yes. The Ontario Employment Standards Act gives Ontario employers the power to schedule employee vacations as they see fit. Therefore, it is legal for an employer to tell an employee they will be taking any accrued or unused vacation during this pandemic.
The main limit on an employer’s right to schedule vacation is that an employee’s vacation time that they accrue each year must be used up entirely in the next year. For example, if an employee accrues two weeks of vacation during their first year of employment, the employee must take two weeks of vacation in the following year. Employers and employees can agree to carry over vacation in excess of the minimum vacation entitlements (two weeks of vacation per year, or three weeks of vacation per year for employees with more than 5 years of service).
Can an employer order an employee to take banked overtime off instead of a layoff?
Yes, but only if the employee agrees.
For each hour worked over 44 hours in a week, most Ontario employees will be entitled to be paid 1.5 times their regular hourly rate. This includes most salaried employees as well.
However, instead of paying 1.5 times an employee’s normal rate, an employer can give the employee paid time off in lieu of paying them. In order to do so, the employee must agree to time off instead of receiving pay. The banked time off must be taken within three weeks of working the overtime hours. The employee and employer can further agree to use the banked time within 12 months.
For example, if an employee earns $41,600 per year (or $20/hour) and works 49 hours in one week, the employer can either pay the employee $150 (5 hours x $20 x 1.5) in addition to their regular pay, or provide them with 7.5 hours (5 hours x 1.5) of paid time off.
Jason Wong of Wong Employment Law is a Toronto Employment Lawyer practicing exclusively employment, labour, and human rights law. If you are an employee or employer who has questions about leaves of absences due to COVID-19, please contact Jason at jason@wongemploymentlaw.com or 647-242-5961.