Vacation time or vacation days are simply days in which the employee is entitled to be away from work. To be clear, these days are not specific to a “vacation” per se and can well be time that the employee is away from work for things like a personal illness or medical appointments, family caregiving requirements or a leave of absence that was agreed to by the employee and employer.

However, the above should not be confused with statutorily protected leaves of absence. A statutorily protected leave of absence like sick leave or parental leave is distinct from vacation days. For more information on that topic please see our blog “Need to Take a Leave From Work? Know Your Ontario Rights”.

Are vacation days statutorily protected?

Yes. Vacation time or vacation days are a statutory entitlement that employees have and the substance of that entitlement is set out in Ontario’s Employment Standards Act, 2000 (“ESA”). The entitlement to two or three weeks of vacation time is determined by the employee’s period of employment upon completion of each vacation entitlement year. An entitlement year is defined by the ESA and means the 12-month period with respect to which the employee has earned the vacation time entitlement. If the employee has been with the employer for less than five years at the end of the vacation entitlement year, the employee is entitled to two weeks of vacation time. Likewise, if the employee’s period of employment is five years or more upon the completion of the vacation entitlement year, the employee’s entitlement is three weeks of vacation time for that year.

What are some important things to understand when it comes to vacation days?

It is important to note that an employee’s own specific employment contract or agreement can specify a greater amount of vacation days that the employee may take. The employer may also agree in writing to a reduced number of vacation days at the employee’s request.

Also, the employer does not have to agree to allow the employee to take vacation days on certain days when the employer needs to have the employee work for legitimate employment reasons. The employer still must allow the employee to take other days as vacation days within 10 months after the entitlement year.

Finally, vacation time or vacation days are not to be confused with vacation pay. Vacation pay is payable on gross wages earned. During the first 5 years of the employee’s employment, the employer is obligated to pay 4% of vacation pay on wages; following the completion of the first 5 years of employment, the employer is obligated to pay 6% of vacation pay on the employee’s gross wages.

Can an employee be fired for taking too many vacation days?

No. The employer is not allowed to dismiss an employee for taking their statutorily entitlement to vacation days under the ESA. To do so is unlawful in Ontario and may carry with it serious consequences to the employer. Among other things, an employer who terminates an employee may be liable to termination and severance pay, as well as damages under Ontario’s Human Rights Code, 1990, as well as moral and punitive damages. The employee may also seek the right to be reinstated with full backpay.

However, if the employee is taking a lot of vacation days beyond the allotted amount under the ESA or what is set out in the employee’s employment agreement or contract, the employer may be able to terminate the employee’s employment as long as they are not doing so in a retaliatory, bad faith or discretionary manner.

How Zeilikman Law can help?

Zeilikman Law helps both employers and employees deal with employment law issues around vacation days by providing legal advice, preparing various policies, correspondence or other documentation, helping to negotiate a resolution to these issues, litigation management, etc.

Contact Zeilikman Law today at (905) 417-2227 or online here to discuss these issues in confidential consultation with an employment lawyer.