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THE QUESTION
I’ve been working at a new job for six months, where I am entitled to two weeks of vacation per year. I requested one week off for a trip I want to take in two months, but HR said I need to wait until I’ve worked for a full 12 months before I’m entitled to take my vacation. I thought that I would be earning my vacation as I work. So, after six months, I should be able to take a week off. It doesn’t seem fair that I have to work a whole year before I can take any time off. What are the rules around this? Should I be allowed to take a week off after six months of working?
THE FIRST ANSWER
Sarah Levine, Lawyer, Taylor Janis LLP, Vancouver and Edmonton
If you are entitled to two weeks of vacation per year as stipulated in an employment contract, then you will want to review the terms and conditions surrounding that. Sometimes contracts will provide for a certain amount of vacation time but with the caveat that, for instance, a certain amount of time must pass before you become eligible. We often see this for benefits, where an employee often has to pass the standard three-month probationary period before they can use their benefits.
In the absence of an employment contract setting out how much vacation you get and when, we default to the governing employment standards laws of the province you work in (or the federal rules if you work for a federally regulated employer). In Alberta, for example, you are not entitled to paid vacation time off in the first year of employment. After one year of employment and up to five years of employment, you are entitled to the two weeks that you mention, and once employed for five years or more, that statutory entitlement increases to three weeks. It is also a general principle, for instance in both Alberta and British Columbia, that vacation time earned must be used within 12 months of earning it.
Of course, if you are determined to take your one-week trip within the first six months of your employment, you always have the option of requesting and taking unpaid time off work.
THE SECOND ANSWER
Shibil Siddiqi, Lawyer, Progressive Barristers, Toronto
This is a common question – and frustration – for employees. The rules around vacation are nuanced and require an analysis of your province’s workplace laws, the employment contract and any applicable employer policies.
In Ontario, the Employment Standards Act (ESA) distinguishes between vacation time and vacation pay. Most employees are entitled to two weeks’ vacation time per year, which increases to three weeks after five years of service. Employees also earn vacation pay of 4 per cent of wages (increasing to 6 per cent after five years of employment) during each 12-month vacation entitlement period. Employers may pay vacation pay on each paycheque or, more commonly, accrue it and pay it when vacation is taken. This is what typically results in paid vacation leave.
Importantly, while vacation pay accrues as wages are earned (and must be paid out if employment ends), vacation time accrues and must be provided only at the end of each 12-month vacation entitlement period. This means that, under the ESA, an employee’s entitlement to take vacation is earned only after completing that entitlement year.
It’s important to carefully review the employment contract and employer policies. Employers can, and often do, provide greater vacation benefits. Some permit vacation to accrue throughout the year and others advance vacation time even before it is earned. However, these are not statutory or free-floating employment rights; they arise from specific contractual terms or workplace policies. Even where enhanced benefits are provided, employers usually retain lawful management discretion over when vacation can be taken, subject to ESA and contractual requirements.
From an employee relations perspective, well-rested employees are productive employees and many employers view accommodating reasonable vacation requests as sound business practice. Strictly speaking, however, absent contractual language to the contrary, the ESA and the common law do not guarantee the right to take vacation in the first year of employment.
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