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THE QUESTION

Can my employer force me to take a vacation day because of the Rogers internet outage? Our team is all remote and many of us weren’t able to get online, myself included. The company is requiring people who weren’t able to work that day to take a vacation day or unpaid sick day. Is this legal? I am permanent, full-time, on a salary and not unionized.

THE FIRST ANSWER

Melissa Rico, partner, Carbert Waite LLP, Calgary

The untimely Rogers internet outage had a detrimental impact on companies operating remotely. Both the employee and employer would rightly be frustrated by this situation, which was beyond the control of both parties. From an employer’s perspective, an employee earns wages only when she performs work. However, an employee who is ready to perform work but is prevented by circumstances beyond her control would find it unfair to not be paid for that day. What is legal in this situation? In our view, it would be challenging to force employees to take a vacation day or sick day.

Typically, vacation is mutually agreed upon between the employer and employee. The employment laws in each province govern when an employer can unilaterally tell an employee when vacation will be taken. In Alberta, the Employment Standards Code states that with two weeks’ written notice the employer can set an employee’s vacation. Absent this notice, employers would be in contravention of the law and at risk of liability.

Another factor to consider is the implied legal obligation employers have in the employment relationship, namely the obligations of good faith and fair dealings. An employer who forces an employee to take vacation retroactively would likely be viewed as acting in bad faith. Furthermore, it is important to remember that the employment relationship is ongoing. Any monetary value gained by the employer in forcing its employees to take a vacation or unpaid sick day would be offset by the detrimental impact on the relationship.

THE SECOND ANSWER

Jonquille Pak, employment lawyer, JPak Employment Lawyers, Toronto

Generally, an employer is not required to pay you for time you are not actually working, so if your employer gave you the option to take the day off, this can be properly treated as an unpaid absence. That is, if you did not wish to use up one of your paid vacation days.

That being said, I suspect many remote employees were expected to be on standby for part, if not all, of the workday, and ready to work if and when internet services resumed. If that is the case, in Ontario this should be treated as paid work time, even if you were unable to perform work because of the outage. Under the Ontario Employment Standards Act, 2000, an employee is deemed to be performing work if required to remain at the “place of employment” and wait or hold themselves ready for a call to work.

A place of employment is not defined under the legislation. However, in the case of remote workers, the definition is arguably broad enough to capture your home office. In other words, if you were expected to be at your home office and ready to work once internet services resumed, this should be treated as an ordinary workday.

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