Are Christmas close-downs actually allowed?

Employers often enforce week-long breaks, but can you legally ask your workers to take more than the statutory holidays?

Are Christmas close-downs actually allowed?
When the festive period finally arrives, workplaces across the country veer wildly from routine, often enforcing week-long breaks – but can you legally require your employees to take more than the statutory holidays?  HRM asked two employment lawyers for their expert advice.

Scheduled vacation

“Employers can make employees take vacation at Christmas but only if they make an employee take an entire week of it,” says David Law, partner at Gowlings. “They can’t cherry pick days here and there.”

Employers are also required to give fair warning to their employees if they plan to schedule vacation days, says employment lawyer Laura Morrison.

“They would have to give employees notice of about two weeks but realistically employers would have to inform their employees well in advance of the Christmas holidays,” warns Morrison.

“Because the holidays fall at the end of the year they need to inform their employees on when they can take their holidays so they don’t find themselves at the end of the year with employees who don’t have enough holidays banked yet to take the holiday,” she explains.

“If that happens, it becomes an issue of are you requiring your employees to take these days unpaid,” she adds.

Temporary lay-offs

If that is the case, there is a provision that employers could potentially use to get around the tricky situation.

“There is a provision in most provinces for something called a temporary lay-off,” reveals Law. “This is where the employer can notify the employee that they’re letting her go for a short period of weeks – a maximum of 13.”

According to Law, employers could potentially suspend employment, without pay, for a period of anywhere between one day and 13 weeks without triggering obligations that the employee has been fired.

However, this option is far from fool proof.

“The province of Ontario says an employer can lay an employee off for up to 13 weeks and they haven’t fired her as long as they bring her back within that period of time,” says Law, “but the common law says the minute she leaves the door she’s fired.”

This disparity, Law says, illustrates the difficulties of living in a country with two different sources of law on the same topic.

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“We have the statutory rules that the various legislators have enacted and we have the common law which is what the courts believe is appropriate,” he explains. “These two sources of law are inconsistent on this point.”

Interpreting the law

“The message to all employers in Canada is that if you have it in your mind to have a temporary lay-off – whatever it’s for – be mindful of the fact that you might be able to do it under the statutory rules but a court could still potentially rule otherwise.”

If that happens, employers could be forced to pay notice which would open them up to significant financial risk.

It’s a system Law heavily stresses he doesn’t agree with.

“It’s impossible for employers to prepare, that’s the problem with it,” he complains.  “That’s why we believe the courts are wrong, respectively, so we’re arguing that they should be interpreting the common law in a fashion consistent with the statute.”

Employer advice

While legally there are ways to navigate asking employees to take time off over the Christmas period, Law suggests there might be an advantage to simply giving workers the additional time off.

“It’s very popular to create these opportunities for time off over the December holidays,” Law told HRM.

“Frankly it’s the most exhausting and least productive time of the year,” he added. “I’d suggest that, unless organizations are under some sort of financial strain, they should consider giving employees the time off as a bonus or good will.”

The small gesture, Law says, will likely amount to less than one per cent of an employee’s annual salary but could do wonders for engagement without seriously damaging productivity.

“It’s a very small incremental increase for days where – and this is the key – in many, many industries, except for retail, it’s an absolute trough of despond,” says Law.

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