As we enter the holiday season, lampposts and windows are decorated, carolers sing in the streets and businesses close at unusual hours. Aside from retail, most businesses tend to slow down and employers sometimes find that they have more staff than they need and may ask them to take vacation time while it is slow. Can an employer legally require employees to take off more time than the statutory holidays of Christmas Day and News Years Day? As with most things law-related, it gets complicated.

There are two ways for employers to shut the lights off: 1. scheduled vacations; and/or, 2. temporary layoffs. With vacations, employers can force employees to take off time for a whole week at a time, but cannot choose when they take the days. Employers also must give fair warning to employees of forced vacations. This notice is generally understood as two weeks but because the holidays coincide with year end, it is important to give employees more advance notice so that they can plan to have enough paid time left to cover the statutory holidays the business is closed. If employees do not have enough paid vacation days left and you require them to take unpaid time off, it can become a problem.

The Employment Standards Act allows BC employers to temporarily lay off employees without pay for up to 13 weeks in any period of 20 consecutive weeks. However, unless the prospect of a “temporary layoff” is discussed in the employment agreement, or is a well-known industry-wide practice, or is agreed to, it can constitute what is known as a “constructive dismissal” of the employee, which triggers additional obligations for the employer.

In addition to the Employment Standards Act, there is also what is known as the “Common Law” which can also impact an employee’s rights and an employer’s obligations. The Common Law is formed by the courts, while the Employment Standards Act was written by our elected representatives in Victoria. According to the courts, the day the employee walks out on unpaid leave he or she is considered fired, or “constructively dismissed”. Should the Court find the employee was constructively dismissed, then the employer may be forced to pay severance, and that can get expensive.

With the law unsettled, the best advice for employers who can afford it may be to avoid this grey area by being generous. Rather than asking employees to take vacation time off over the Christmas holidays, it may help your long term business goals to give extra paid time off as a bonus. This will increase goodwill and engagement among your employees, who can enjoy the time with family while business is slow.

Shutting the lights off over the holidays must be done with thought and with care. Many industries are slow at this time so requiring time off is appealing. However, without giving employees a chance to plan their scheduled vacations or by forcing a temporary unpaid leave, the court might consider the employer a Grinch. Playing Santa is generally better for business in the long run.