Entitlement to Annual Vacation - Act Part 7, Section 57
This section explains the amount vacation time entitlement an employer must give an employee and when it must be taken.
57. (1) An employer must give an employee an annual vacation of
(a) at least 2 weeks, after 12 consecutive months of employment, or
(b) at least 3 weeks, after 5 consecutive years of employment.
(2) An employer must ensure an employee takes an annual vacation within 12 months after completing the year of employment entitling the employee to the vacation.
(3) An employer must allow an employee who is entitled to an annual vacation to take it in periods of one or more weeks.
(4) An annual vacation is exclusive of statutory holidays that an employee is entitled to.
Annual vacation under the Act consists of time off under this section, and vacation pay payable under s. 58.
Annual vacation under the Act consists of time off and earned vacation pay. Time off for vacation must be taken. Neither an employer nor an employee may waive the statutory entitlement to annual vacation. Failure to grant an annual vacation is a contravention of the Act even if vacation pay is paid out.
After completing a year of employment, employees must be given at least two weeks' vacation each year up to completion of their fifth consecutive year of employment. Employees must be given at least three weeks' vacation each year after completing five consecutive years of employment. Employers are not required to give vacation time off during an employee's first year of employment.
Enforcement of vacation time in excess of statutory minimums
The requirement to grant a vacation of “at least 2 weeks...” or “at least 3 weeks…”under subsection (1) means the director can enforce more than the statutory minimums if the employment contract between the parties provides for a greater benefit.
An employee has worked for ABC Ltd. for seven years. Under the Act, the employee is entitled to at least three weeks annual vacation as they have worked for ABC Ltd. for more than five years. However, ABC Ltd. gives all of its employees four weeks annual vacation. This provision is enforceable under the Act.
The Act does not provide for the banking or deferral of annual vacation.
Both full and part time employees are eligible for annual vacation.
Any employee leave of absence, including temporary layoff, a leave under Part 6 or any other employer authorized leave of absence is included when determining continuous employment for vacation entitlement. Examples of employer authorized leaves include medical leave and education leave.
An employee works for three months at a new job and then goes on pregnancy and parental leave. Since the employee's employment is deemed to be continuous through their leave, when the employee returns to work they are in their second year of employment. During that second year, the employee is entitled to at least two weeks of vacation accrued during their first year of employment. Although their entitlement to time off for vacation is unaffected by their leave, the amount of vacation pay will be small. It will be 4% of the employee's gross wages from their first year of employment, which in the employee's case will be calculated on the three months that they earned wages.
Vacations must be given, after the first year of employment, each year no later than 12 months after the employee's anniversary of employment. The employer has the right to authorize the actual timing of vacations as long as the time off is taken within 12 months of the applicable anniversary date.
An employee starts work April 1, 2008. On March 31, 2009 the employee has completed 12 consecutive months of employment. In the following 12 months, April 1, 2009 – March 31, 2010, the employer must ensure that the employee takes two weeks of annual vacation.
Length of Vacation
An employer cannot require employees to take vacation in periods of less than one week. However, employees may request vacations in periods of less than a week. The responsibility is on the employer to show that a shorter period taken was at the employee’s request.
Section 67(1) prohibits an employer from scheduling an employee’s vacation to coincide with notice of termination of employment.
Section 59 of the Act prohibits an employer from granting time off as a bonus or sick time and later reducing an employee’s vacation entitlement as a result of the previously granted leave.
Statutory holiday falls during an annual vacation
An annual vacation is exclusive of statutory holidays that an employee is entitled to.
If a statutory holiday falls during an employee’s vacation, the employee is entitled to be treated the same way for their statutory holiday entitlement as they would be if they were not on vacation.
Employees covered by a collective agreement
Under s.3, of the Act, where a collective agreement contains any provision respecting annual vacation, the provisions of this section do not apply. If a collective agreement does not contain any provision respecting annual vacation, Part 7 is deemed by s.3 to be incorporated in the collective agreement as part of its terms.
Where there is a collective agreement, the enforcement of matters relating to Part 7 is through the grievance procedure, not through the enforcement provisions of the Act.
Under ss. 33 and 37 of the Employment Standards Regulation certain employees and occupations are excluded from Part 7.
Related sections of the Act or Regulation
- s.1, Definition “temporary layoff”
- s.3, Scope of the Act
- Part 6 – Leaves and jury duty
- s.45, Statutory holiday pay
- s.58, Vacation pay
- s.59, Other payments or benefits do not affect vacation rights
- s.60, Common date for calculating vacation entitlement
- s.67, Rules about notice