THE QUESTION
I’m a full-time, salaried remote worker using my own laptop for my job. I dropped my laptop by accident and it took three days to be repaired. I wasn’t able to work for those three days, so my employer says those will be docked as vacation days. Is this legal?
THE FIRST ANSWER
Susanna Quail, partner, Allevato Quail & Roy, Vancouver
The answer to this question depends on how this situation unfolded.
Ideally, when you broke your laptop and couldn’t work, you would have contacted your employer right away and told them what happened. A conversation should have then ensued about how you could do your job in the meantime while waiting for the repair. Maybe they could rush courier you another laptop, or you could log into a remote desktop at a co-working space, or you could drive into a physical office location. Maybe they couldn’t, but it is up to your employer to decide how and whether to assign you work.
If you had that conversation and they told you that they had no way to assign you work for those three days, then they probably cannot withhold your pay (unless you have a written employment contract saying otherwise). You were available and reported for work and they declined to assign you work.
However, if you did not have that proactive conversation and just went offline for three days, and then showed back up when your computer was fixed and expected to be paid for the days you didn’t work, then they can probably decline to pay you. It is not open to an employee to make the decision whether and how the employer will assign work in the face of an equipment failure, whether you are in-person or remote.
THE SECOND ANSWER
Rahul Soni, employment lawyer, Soni Law Firm, Toronto
Your employer cannot dock those three days as vacation time. Under Ontario’s Employment Standards Act, your employer can pick your vacation days for you in limited circumstances only. The minimum length of an employer-assigned (forced) vacation period is a one-week block of time off. This minimum mandatory block of uninterrupted vacation time is to ensure employers are not simply forcing workers to take a day or two off to accommodate the employer’s needs only. Lawmakers tried to strike a balance between allowing employers to control scheduling vacations and providing workers meaningful time off.
Also, your employer cannot retroactively assign you vacation days. Your employer was obligated to let you know in advance of its decision to schedule your vacation days for the time your laptop was being repaired. If this did not happen, your employer cannot use your vacation days and must pay you as though you were still actively working during that time.
Finally, it’s important to note that your employer can assign vacation days only if you have enough paid vacation days to cover the minimum required time off. If that’s not the case, your employer is not allowed to impose any forced vacation days on your behalf.
So, your employer cannot use your vacation days to cover the computer’s repair time unless: your employer provided you with advance notice, your imposed vacation time was for at least a one-week block and you had enough paid vacation days to fully cover the time off period.
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Andrea Yu