Vacation pay/deferral in Ontario

[vickyp]

#80565

Good morning,
Due to the current COVID pandemic, I am reviewing various options that we as a company have with regards to employee vacation entitlement/pay/deferral. I have listed questions below;

1. I am aware of the ESA minimum requirements when it comes to vacation entitlement, but we provide a majority of our employees up to five weeks of vacation based on their seniority. In this case, can we as employer’s force/compel employees to defer part of their vacation entitlement to the following year?
2. Similarly, would the company be able to force/compel employees to forfeit half of their vacation entitlement for this current year only due to the pandemic? We would continue to provide the minimum standard of 2 weeks but are we able to mandate them to forfeit the balance, if that is the case, would the company be obligated to pay out the balance of vacation time?
3. Would there be any implications if we would require only our non union employees to participate? Can we force union members to defer or forfeit vacation time as well?
Best regards,

Nancy Mucci

[vickyp]

#80566

And here’s Alan’s two-cents worth, so to speak.
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I think deferring is one thing, so long as employees take at least the minimum time required under the applicable employment standards.
Forfeiting is another and may well be viewed as constructive dismissal, as you have correctly pointed out in your answer.
If the collective agreement provides for 5 weeks of vacation time, it would require union consent to change these provisions.
Otherwise, the union could presumably go to the labour board and file a complaint.
The different impact on those with 2 versus 5 weeks of vacation pay is not discrimination as defined by any of the Human Rights legislation. Seniority is not a protected ground for Human Rights purposes, but may be in a collective agreement.

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