Vacation may not be top of mind for employees in Ontario right now: March Break is postponed, public health officials continue to advise against non-essential travel, and the Government of Canada imposed greater international travel restrictions. But even though employees may want to save their time off for warmer weather and, hopefully, an improved public health situation, employers in Ontario must nonetheless ensure that employees are taking at least the minimum annual vacation time prescribed under the Employment Standards Act, 2000 (the ESA).

How many weeks of vacation are employees entitled to under the ESA?

An employee who has worked for the employer for at least one year is entitled to at least two weeks of vacation per year. Once the employee reaches five years of service, he or she is entitled to at least three weeks of vacation per year. Note that these are the statutory minimums for vacation under the ESA, and a particular employer’s vacation policy or collective agreement may provide for more.

Who decides when an employee takes vacation?

The employer is generally entitled to determine when an employee takes vacation, subject to any conditions set out in the ESA, employment contracts, or collective agreements. Further, an employer should always act reasonably in making decisions about scheduling vacation.

When does vacation have to be taken?

Employees must take annual vacation under the ESA no later than 10 months immediately following the completion of the vacation entitlement year. Unless the employee requests otherwise, the ESA requires employers to schedule vacation in unbroken periods of at least one week.

What if an employee does not want to take vacation?

Although it is understandable that employees may want to defer vacation given the current public health restrictions, employers must ensure that each employee is taking at least his or her statutory minimum vacation within the timelines prescribed by the ESA. Failing to do so will generally put the employer in non-compliance with the ESA.

The only way to forego an employee’s minimum vacation under the ESA – even if the employee wants to – is with the approval of the Director of Employment Standards.

Key take-away

As a best practice, employers and employees should generally avoid attempting to forego annual vacation. Doing so is inconsistent with the purpose of the minimum vacation entitlements under the ESA, which are intended to provide employees with a minimum break from work each year. Further, an employee could suffer physical or mental health consequences because of a significant period without a vacation, which may also pose an occupational health and safety risk depending on the industry.

Employers have a statutory duty to ensure that employees take their minimum annual vacation entitlements within the prescribed time limits, even if the current travel restrictions mean employees will have to settle for a “staycation”.

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