Canadian Employment Law Today

Answer: The answer to the first question de- pends on the laws of the applicable jurisdic- tion and any negotiated terms. As for the sec- ond question, if the entitlement is statutory, the answer is no. Vacation time The manner in which employees accumu- late vacation time is calculated differently depending on the jurisdiction. For example, some jurisdictions require the employee to work a certain number of months in the year or a certain percentage of normal working hours in the year to maintain vacation en- titlement. As such, whether an individual employee's vacation entitlement will be affected by a period of layoff depends on a combination of factors, including the particular jurisdic- tion, the employee's length of service and the amount they have worked over a particular period. For example, in New Brunswick, vacation entitlements for an employee with less than eight years' service is the lesser of two weeks' vacation or one day for each calendar month worked. Thus, depending on the length of layoff, there may not be any impact on va- cation entitlement. For example, where an employee with four years' service is laid off for less than two calendar months (they work for 10 months of the year), they still would be entitled to 10 vacation days. Conversely, in Newfoundland and Labra- dor, an employee who has worked less than 90 per cent of the regular working hours for the year is not entitled to vacation time (but is still entitled to vacation pay). In Saskatch- ewan, an employee is not entitled to vacation if they are laid off for a period of 26 weeks or more; otherwise, their vacation entitlement remains unchanged. In Alberta, the employ- er may reduce the employee's vacation in proportion to the number of days the employee would normally have been sched- uled to work but did not. Service time Whether an employee will continue to accu- mulate service time over a period of layoff will depend on the duration of the layoff and may be affected by the terms in any appli- cable employment or collective bargaining agreements. Generally, employment standards legisla- tion sets out a prescribed period of time that an employee may be temporarily laid off. The permissible period may be further im- pacted by employment or collective bargain- ing agreements. If the employee is recalled within the prescribed period, employment is considered continuous and the employee will have accumulated service time for the period spent on layoff. However, if the layoff exceeds the prescribed period, the employ- ment relationship can be considered at an end. For example, in Newfoundland and Lab- rador, a temporary layoff may not exceed 13 weeks in a 20-week period or else it will be deemed a termination (subject to a recent change to account for COVID-19 extend- ing the 13 weeks to 26 and the 20 weeks to 33). Ontario and British Columbia have ex- tended the time period for temporary lay- offs in response to the COVID-19 pandemic; Ontario now allows a layoff to be extended to 35 weeks in any period of 52 consecutive weeks in certain cases, while B.C. now allows for a layoff of up to 16 weeks in a 20-week period. In some provinces, including Alberta and Ontario, the period of temporary layoff may be extended if the employer continues the employee's benefit plans. Release Employment standards legislation is reflec- tive of the minimum entitlements in each jurisdiction and generally cannot be con- tracted out by requesting that the employee forego their vacation time. However, in some jurisdictions, legislation may allow an em- ployee to elect to give up their vacation time and only collect vacation pay. For example, a federal employee is entitled to waive their annual vacation entitlement by written agreement with the employer. In Ontario, the director of employment stan- dards must also agree before an employee can give up vacation time. In Nova Scotia, employees who have worked less than 90 per cent of the regular working hours during the year may elect to take vacation pay instead of vacation time. In any event, it is important to remember that employers have a general right to dictate when employees take vacation. Generally, employers may require employees to take any unused vacation before commencing a period of layoff, subject to any restrictions set out in employment or collective bargain- ing agreements. However, employees cannot sign a release foregoing the accumulation of service time during the permissible layoff period, as min- imum standards legislation considers em- ployment continuous during this time. Brian Johnston, Q.C., is a partner with Stewart McKelvey in Halifax. He can be reached at (902) 420-3374 or bjohnston@stewartmckelvey.com. 2 | July 1, 2020 Ask an Expert Have a question for our experts? Email jeffrey.smith@keymedia.com STEWART MCKELVEY, HALIFAX with Brian Johnston Vacation and service time for laid-off workers Question: Does an employee on temporary layoff accumulate vacation and service time? If so, can the employee sign a release agreeing to forego them during the layoff? Canadian HR Reporter, 2020 Employment law blog Canadian Employment Law Today invites you to check out its employment law blog, where editor Jeffrey R. Smith discusses recent cases and developments in employment law. The blog features topics such as temporary layoffs during the pandemic, health and safety for remote workers and employee mental stress during COVID-19. You can view the blog at www.employmentlawtoday.com. Accumulation of service time depends on the duration of the layoff and any applicable employment or collective agreements.

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