Everything you need to know about vacation accumulation and maternity leave

If you are on maternity leave you likely have questions about vacation time. Moms at Work wants to save your previous free time for things like sleep - so we've asked our favourite labour and employment lawyer, Deborah Sinclair to give us the facts.

Do employees accumulate vacation time while on a job protected leave (such as a pregnancy or parental leave)?

The short answer is yes, employees accrue unpaid vacation time off while on leave. In Ontario, employees continue to accrue vacation time when they are on a protected leave of absence, just as they continue to accrue service credits and seniority during the leave. However, although employers must allow employees to accrue vacation time while on leave, employers are not legally required to allow employees to continue to accrue vacation pay. The result, at the end of a protected leave, an employee will have accrued vacation time off, but not paid vacation time (unless the employer provides a better right than the statutory minimum requirements).

Vacation Time vs. Vacation Pay

Under Ontario’s Employment Standards Act, 2000, employees accumulate vacation time separately from vacation pay. An employee on any job-protected leave is entitled to accrue “vacation time” while they are on the leave, but they are not entitled to accumulate “vacation pay”.

In some cases, employers may offer a greater right or benefit than the minimum requirements. For instance, some organizations will provide its employees with the right to accrued paid time off while on leave (by way of a policy or contractual right), but there is no legal requirement for an employer to do so. The only requirement is to allow the accrual of vacation time off (which is separate and distinct from paid vacation).  

In terms of vacation timing, the employer has a right to determine when an employee takes their vacation. However, practically, most employers will usually allow employees to request when vacation is taken through an approval process. Some industries may block off busy periods. That said, an employee does not have a guaranteed right to have unpaid vacation time off approved at the end of their job-protected leave (like pregnancy or parental leave). If a leave is required for reasons like childcare, the employee should consider other options (like family status requests under the Human Rights Code).

For more information on vacation time and vacation pay during leaves of absence, you can visit a website from the Ontario government that provides information at: https://www.ontario.ca/document/your-guide-employment-standards-act-0/vacation#section-10

Prepared for My Parental Leave by Deborah Hudson, Labour + Employment Lawyer and Partner, Hudson Sinclair LLP. This is not legal advice.

Hudson Sinclair is a labour and employment law firm dedicated to providing best in class client service and achieving exceptional results.

As advocates they represent their clients in litigation before the Courts and administrative tribunals. They value the importance of early and productive resolution discussions when beneficial and appropriate.

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Deborah Hudson

Deborah Hudson is an experienced labour and employment lawyer based in Toronto, Canada who provides solutions-focused, timely, and highly specialized legal advice. She advises clients about matters occurring at all stages of the employment relationship, including: Reviewing/drafting employment contracts and termination packages, Drafting/ interpreting employment-related policies and procedures, Advising on accommodation and human rights matters, including maternity leave and parental leave rights. Moms at Work members receive a discounted, flat-rate fee for a 45-minute initial consultation.

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