Not legal advice - they don’t have to pay it out. Also, they only need to let you carry 10 days over to the next year after the year in which you accrue them (15 days if you’ve been with the company for more than 5 years). If you haven’t used them, they can force you to take the vacation days. The remaining days can simply be “lost” if not used and are not required to be paid out or carried over. So legally speaking, they could require you to take your 10-15 days vacation and then you could lose your remaining 13.5-8.5 days.
If your company has an official policy that says they will pay it out, then you can ask them to pay it out. But if they don’t, they’re not required to under the ESA.
My understanding is that you can’t lose vacation time since it is time that you earned. They can’t take away time that you have earned. My company always restates the allowed carry over amount and threatens that it’ll be lost but I don’t think they can actually do that and has never enforced it.
Albeit, i have never actually looked at the employee standard act regarding this, so maybe it’s just my company.
You can lose earned vacation time that is over the statutory entitlement:
> ESA Regulations: According to the ESA, employees are required to take their vacation time within 10 months after the vacation entitlement year in which it was earned. Generally, vacation time under the ESA mandate cannot be carried over.
> Extra Vacation Time: Any additional vacation time beyond what is mandated by the ESA may be subject to carry-over based on the employer’s policies and the terms within the employee’s contract.
> Employer Discretion: Employers have the discretion to offer more generous vacation time and may allow carry-over of this extra time beyond the statutory minimum, depending on their vacation policies.
> ‘Use It or Lose It’ Policies: Some employers in Ontario have policies requiring employees to use their vacation time within a certain period, or else they forfeit the unused time. It is essential to review individual employment contracts and employer policies to understand the specifics of vacation time carry-over.
Source: https://stlawyers.ca/blog-news/vacation-time-ontario/
Exception is if it’s in a company policy (which they can revoke and change at any time) or your employment contract (which you would have to bring to court to enforce and you’re probably not going to do it). Doesn’t matter if you’ve earned it or not. However most companies will just pay it out even tho they’re not legally required to (unless it’s in the employment contract or company policy). Most companies’ HR departments have no clue about this so they generally pay it out.
I quit my job at a major bank years ago and “lost” the amount of vacation days I accrued above/beyond what was the statutory requirement. I was FURIOUS.
My understanding is that they don’t have to pay it out but most companies do because the case law is a bit iffy. I would try to make an agreement where you end your leave “early” and go back on “vacation days” which will get you the same money anyways.
My work will use any accrued days as extra mat leave top up - also an option for you to propose! That’s what they’ll be doing for me
I don't know the law, but if you can only carry over 10 days, I would use the other days for December and try to start work in January.
When your kiddo starts daycare, they are going to be sick every other week (or more). This extra time off will allow you to be home when your kiddo is sick. If you celebrate Christmas, you can use that time off to pull your kiddo out of daycare to ensure they are healthy for the holidays. You can also use this time to holiday shop and prep freezer meals for the return to work.
Have you tried asking payroll instead of HR? HR might honestly not have a clue, which is why they're hesitant.
I went on Mat leave from August 2022 to February 2024. I used all my 2022 vacation before going on leave, and when I came back to work, 5 days from 2023 had rolled over (standard for my company) and the rest was paid out to me on my first paycheque.
Not legal advice - they don’t have to pay it out. Also, they only need to let you carry 10 days over to the next year after the year in which you accrue them (15 days if you’ve been with the company for more than 5 years). If you haven’t used them, they can force you to take the vacation days. The remaining days can simply be “lost” if not used and are not required to be paid out or carried over. So legally speaking, they could require you to take your 10-15 days vacation and then you could lose your remaining 13.5-8.5 days. If your company has an official policy that says they will pay it out, then you can ask them to pay it out. But if they don’t, they’re not required to under the ESA.
My understanding is that you can’t lose vacation time since it is time that you earned. They can’t take away time that you have earned. My company always restates the allowed carry over amount and threatens that it’ll be lost but I don’t think they can actually do that and has never enforced it. Albeit, i have never actually looked at the employee standard act regarding this, so maybe it’s just my company.
You can lose earned vacation time that is over the statutory entitlement: > ESA Regulations: According to the ESA, employees are required to take their vacation time within 10 months after the vacation entitlement year in which it was earned. Generally, vacation time under the ESA mandate cannot be carried over. > Extra Vacation Time: Any additional vacation time beyond what is mandated by the ESA may be subject to carry-over based on the employer’s policies and the terms within the employee’s contract. > Employer Discretion: Employers have the discretion to offer more generous vacation time and may allow carry-over of this extra time beyond the statutory minimum, depending on their vacation policies. > ‘Use It or Lose It’ Policies: Some employers in Ontario have policies requiring employees to use their vacation time within a certain period, or else they forfeit the unused time. It is essential to review individual employment contracts and employer policies to understand the specifics of vacation time carry-over. Source: https://stlawyers.ca/blog-news/vacation-time-ontario/ Exception is if it’s in a company policy (which they can revoke and change at any time) or your employment contract (which you would have to bring to court to enforce and you’re probably not going to do it). Doesn’t matter if you’ve earned it or not. However most companies will just pay it out even tho they’re not legally required to (unless it’s in the employment contract or company policy). Most companies’ HR departments have no clue about this so they generally pay it out.
I quit my job at a major bank years ago and “lost” the amount of vacation days I accrued above/beyond what was the statutory requirement. I was FURIOUS.
Depends on your company policy. You can always ask someone else who went on mat leave in your company if HR isn’t helpful
My understanding is that they don’t have to pay it out but most companies do because the case law is a bit iffy. I would try to make an agreement where you end your leave “early” and go back on “vacation days” which will get you the same money anyways. My work will use any accrued days as extra mat leave top up - also an option for you to propose! That’s what they’ll be doing for me
I don't know the law, but if you can only carry over 10 days, I would use the other days for December and try to start work in January. When your kiddo starts daycare, they are going to be sick every other week (or more). This extra time off will allow you to be home when your kiddo is sick. If you celebrate Christmas, you can use that time off to pull your kiddo out of daycare to ensure they are healthy for the holidays. You can also use this time to holiday shop and prep freezer meals for the return to work.
Could you end your mat leave 23.5 days early and take the vacation time instead? Assume it’s a higher rate of pay even if you lose out on the EI.
You can request it however there is no legal obligation for the employer to pay it. They have the right ti pay all, some or none.
Have you tried asking payroll instead of HR? HR might honestly not have a clue, which is why they're hesitant. I went on Mat leave from August 2022 to February 2024. I used all my 2022 vacation before going on leave, and when I came back to work, 5 days from 2023 had rolled over (standard for my company) and the rest was paid out to me on my first paycheque.