It may seem odd to think about vacations during a pandemic, especially when so many employees are not working, and non-essential travel is discouraged, at the very least, and in the case of international travel, not currently possible.
Some employees, consequently, have decided to “cancel” their vacation. Employers have asked what to do with those employees, and upcoming scheduled vacations.
Cancelling ≠ Forfeiting
Vacations are, at minimum, a statutory entitlement and are often also contractual. The Employment Standards Act and the Canada Labour Code mandate both vacation pay and time for vacation, as separate obligations. Neither can be waived by agreement. If an employee does not take vacation, that entitlement may be carried forward.
Allowing employees to cancel their vacation does not mean that the right to take vacation or be paid vacation pay is forfeited. The employer’s vacation liability remains, and continues to grow.
Vacation is a Good Thing.
In his seminal text, The Seven Habits of Highly Effective People, Dr. Stephen R. Covey lists “Sharpen the Saw” as the seventh habit. He recommends taking time to renew oneself physically, socially, emotionally, mentally and spiritually. Taking that time allows employees to become more effective.
Vacation is a major opportunity to “sharpen the saw”. There are multiple studies showing the benefits of vacation on employees’ physical and mental health.
Vacation ≠ Travel
Over the past few generations, “vacation” has become synonymous with “travel”. It is common to ask where one will go on vacation, rather than what one will do on vacation. That assumption has led many employees to cancel, or seek to cancel their 2020 vacation.
The law, however, does not equate vacation with travel. Vacation is simply a period of time during the employment year when an employee is not required to “work” yet is entitled to pay. During the vacation, the employee is free from any obligation to the employer, either to go to work or to expend any effort on its behalf. It is the freedom from work that constitutes the vacation. What the employee does otherwise during that time is not material.
Recommendations
To reduce the potential liability to the employer, which is both financial and operational, and to maximize employees’ well-being, I recommend employers do the following:
- Maintain the existing vacation schedule. Subject to point 3 below, do not consent to further cancellations.
- Reschedule vacation time for those employees who cancelled their vacations, ideally before the year-end, at a time that is convenient to the employer.
- Be attentive, however, to the potential need for accommodations. For some employees, being at home for a lengthy period may be either an additional stressor or even dangerous. If an employee requests an accommodation on those grounds, work with the employee to find an appropriate time to be away from work.
- At all times, communicate with the employees. Remind them of the employer’s obligation to ensure employees take vacation, and the value of time away from work.
- When employees are on vacation, let them truly be free from work: leave them alone.