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The Question

My workplace is introducing a new rule that I must take my vacations in week-long blocks. These blocks need to be set by a date early in the year. Is this legal? Do I have to accept this policy? I work in an office setting with a small team of people and we all have the same function. I often use my vacation days to cover health care needs as they come up and my sick days wouldn’t cover them. What should I do?

The First Answer

Rahul Soni, barrister and solicitor, Soni Law Firm, Toronto

As an employee, you are entitled to paid vacation time. However, your employer can decide when you take those vacation days.

According to Ontario’s Employment Standards Act, an employee with fewer than five years of service with their employer must take their vacation in: (i) a two-week block or (ii) two separate one-week blocks, “unless the employee requests in writing that the vacation be taken in shorter periods and the employer agrees to that request.”

The same legislation requires that if an employee has five or more years of service with their employer, the employee must take their vacation in: (i) a three-week block; (ii) a two-week block and one-week block; or (iii) three one-week blocks, “unless the employee requests in writing that the vacation be taken in shorter periods and the employer agrees to that request.”

In some special circumstances, your employer’s decision to introduce this new vacation policy may be considered a material change in your employment contract, especially if your employer knew before hiring you that you would need to take time off on an ad-hoc basis to cover health care needs. In those select circumstances, you may be able to refuse the policy change, argue a constructive dismissal and be entitled to termination pay.

As a first step, have a conversation with your employer about allowing you to continue operating under the old vacation rules instead of the new proposed policy. Be sure to inform your employer about how the old vacation rules allow you to cover health care needs and how easily your request can be accommodated by them, especially given that everyone on your team has the same function.

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The Second Answer

Susanna Allevato Quail, partner, Allevato Quail & Roy, Vancouver

Assuming you are not unionized and do not have a written employment contract that sets out how vacation time will be scheduled, your employer has the discretion to set rules about scheduling vacation time. That doesn’t mean your employer can change anything they want at any time: If an employer makes changes that amount to a substantial alteration of the essential contractual terms (to use the legal jargon), an employee may choose to declare themselves constructively dismissed and seek damages on that basis. However, changes to vacation scheduling are unlikely to meet that threshold and even then your only recourse would be to quit and seek damages for wrongful dismissal.

In a unionized workplace, employers don’t have this degree of control. Vacation scheduling is normally negotiated in a collective agreement, which can only be changed through collective bargaining. You can try asking your employer to let you use your vacation time more flexibly, but faced with an unreasonable employer, your best recourse is joining a union. Your province or territory’s federation of labour is a good place to start to get connected with a union that represents workers in your sector.

As a side note: If your health care needs are related to a disability, your employer has a duty to accommodate those needs. They may not have to let you take your vacation time for those days, but they do have to let you take time off without pay to attend to your health care needs (as long as giving you that time off does not impose undue hardship).

Have a question for our experts? Send an email to NineToFive@globeandmail.com with ‘Nine to Five’ in the subject line. Emails without the correct subject line may not be answered.

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