While most employers are aware of the general rules surrounding an employee’s right to take vacation as determined by the Loi sur les normes du travail, here are some lesser known facts*:
Fact 1: You must respect the reference periods
In Quebec, vacation is accumulated during one reference year, to be taken during the following reference year. During the reference year, set as May 1 to April 30 by law, employees are only entitled to take vacation time, or use vacation dollars accrued during the previous reference year. Employers can choose to have a different reference period but it should be clearly communicated through a policy.
Fact 2: Vacation taken in advance can be owed back to employees
If an employer allows employees to use vacation time as it is accumulated, this time can be considered as anticipated vacation and may not count towards actual vacation time taken. An error that can be quite costly for employers who would be forced to let employees retake their previous vacation. While anticipated vacation can be given if the employee requests it, it should be clearly understood that the employee will no longer have this vacation during the following reference period, preferably by doing so in writing. Vacation cannot be paid in advance on a continuous basis.
Fact 3: Employees cannot “lose” their untaken vacation
Ultimately it is up to employers to determine an employee’s vacation dates. While most employers allow employees the courtesy of choosing their preferred vacation dates, the law provides that employers can choose the dates of the employee’s vacation with four weeks of notice.
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Fact 4: Employees are entitled to take their vacation consecutively
Employees can take their vacation time in consecutive weeks. Any internal policy stating that employees cannot take more than one or two weeks in a row is not valid under the law. Employees are also generally allowed to take their vacation in two separate periods.
Fact 5: Employees with 2 weeks of vacation actually have 3
Employees with two weeks of vacation can take a third week off at their own expense. The third week does not have to be consecutive to the other two weeks.
Fact 6: Employees on leave may still earn vacation
Employees continue to accumulate vacation during certain unpaid leaves, such as the 18 weeks of maternity leave, the 5 weeks of paternity leave, or up to 26 weeks of sick leave during a 12 month period. No vacation is accumulated during parental leave. The CNESST website provides a vacation calculator to help determine the amounts owed.
Fact 7: Vacation is not only accrued on base salary
Vacation pay is accumulated on all earnings during the reference year including overtime pay, commissions, bonuses and tips. Employees even accrue vacation on the statutory notice employers give on termination of employment!
Fact 8: The law has recently changed
As of January 1, 2019, employees with 3 years of service or more are entitled to 3 weeks of vacation (previously 5 years of service was required). Employers will have to adjust their vacation accruals for affected employees to account for 6% of their earnings during the full reference year, even if it extends to before the effective date of the change.
The above facts apply only to vacation provided for by law. Employers could have more flexibility with any vacation exceeding the minimum requirements, however we recommend ensuring your employment contracts and policies are clear to avoid misunderstandings.