HR Home Forums Community Vacation pay/deferral in Ontario

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  • Conner Lantz
    Keymaster
    Post count: 4836

    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

    Conner Lantz
    Keymaster
    Post count: 4836

    I’m going to run this past our payroll guru, Alan McEwen for confirmation, but here’s my less expert opinion:
    1. Yes, provided that the new vacation entitlement doesn’t fall below the ESA minimum or violate the terms of any preexisting collective agreements, employment contracts or benefit plans
    2.Same answer
    3. Also the same answer. In fact, this may be a necessity to the extent your changes encounter union resistance or violate the collective agreement.
    4. Potentially yes to the extent these vacation changes are made unilaterally. However, you may have some leeway if the changes are only temporary and made in response to the COVID-19 crisis. The problem is that the outcome of constructive dismissal litigation is extremely hard to predict. Each case turns on the specific facts, the credibility and even like-ability of the parties and the arbitrator/judge’s individual outlook. But, yes, constructive dismissal would be a risk.
    5. Discrimination, too, is a potential risk. A policy that seems neutral on its face may still be discriminatory if it has the effect of discriminating against a protected group, e.g., a fitness test in which ALL applicants must complete an obstacle course in X minutes may have the effect of discriminating against women, pregnant women, older and disabled applicants. To the extent all or most of the employees affected by the vax cuts fall into one of the protected groups, this claim for discrimination would be on the table.
    I’m pretty comfortable with Answers 4 and 5 but want to see what Alan says about Answers 1 to 3.  Hope this helps and I’ll circle back as soon as I hear from Alan. Glenn

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