As we enter the holiday season, while retailers are ramping up, many businesses are looking at slowing down. At this time of year, employers may often find that they have more staff than they need and may ask them to take vacation time. But can an employer legally require employees to take off more time than the statutory holidays of Christmas Day and New Year’s Day? As with most things law-related, it gets complicated.

There are two ways for employers to essentially “turn the lights off” at Christmas: scheduled vacations and/or temporary layoffs.

scheduled vacations

• With vacations, employers can force employees to take off time for a whole week at a time but cannot choose when they take those 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 days the business is closed for the holidays. If employees do not have enough paid vacation days left and they are required to take unpaid time off, it can become a problem.

temporary layoffs

• 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 employers. 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. Common-Law is formed by the courts while the Employment Standards Act was written by the provincial government. According to the courts, the day an 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.

Shutting the lights off over the holidays must be done with thought, care, and planning. Businesses typically slow down at this time of year so the idea of asking employees to take time off is appealing. However, without giving them 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. Rather than asking employees to take vacation time off over the holidays, it may help long-term business goals to give extra paid time off as a bonus. This will increase goodwill and engagement among employees, who can enjoy the time with family and friends while business is slow.

If you have questions about this or other employment-related issues, contact one of RDM’s Employment professionals today.