Pandemic or no pandemic, to many people the summer season only truly kicks off in Quebec on June 24 with the National Holiday (also known as St. John the Baptist Day), and on July 1 with Canada Day, both of which fall on a Wednesday this year.
These two holidays being just around the corner, we prepared the following summary of the main rights and obligations of both provincial and federal jurisdiction employers, along with some practical considerations with respect to the COVID-19 situation.
Overview of the applicable legal framework
Various regimes apply to the National Holiday and Canada Day. The first is governed by the National Holiday Act (NHA), and the second is governed, as the case may be, by the Actrespecting labour standards (ALS) or by the Canada Labour Code (the Code), as well as the Holidays Act (HA).
Since the rules that apply to both holidays differ, we will deal with them here separately. It bears noting that employers are free to offer more generous benefits than those set out in the rules.
National Holiday
Employers under provincial jurisdiction
The main rules that apply will depend on the following scenarios:
| Scenarios | Applicable rules |
|---|---|
| Employees who would normally work the Wednesday on which the holiday falls |
These employees will be entitled to one (1) paid day of leave this June 24. More specifically, an indemnity equal to 1/20 of the wages earned during the four (4) complete weeks of pay preceding the week of June 24, excluding overtime, must be paid to these employees. A different indemnity will apply, however, if these employees are remunerated by commission. |
| Scenarios | Applicable rules |
|---|---|
| Employees who would not normally work the Wednesday on which the holiday falls |
Employers may choose either to pay these employees the indemnity indicated above (1/20) or grant them a compensatory holiday of one (1) day. This compensatory holiday, where applicable, must be taken on the working day preceding or following June 24. However, if the employee is on vacation at that time, the holiday may instead be taken on a date agreed upon by the employer and the employee. |
| Employees who must work this Wednesday, June 24, as the business's activities cannot be interrupted by reason of their nature |
Although employers may, as a general rule, require some of their employees to work on holidays, the rules are stricter in the case of the National Holiday. During this holiday, employers may require that some employees work, but only where, by reason of the nature of their business's activities, work cannot be interrupted on June 24. This would include restaurants or convenience stores, for example. If this condition is met and some employees will therefore be working this June 24, in addition to paying them wages for the work done, employers must also pay their employees the indemnity indicated above (1/20) or grant them a compensatory holiday of one (1) day. This compensatory holiday, where applicable,
must be taken on the working day preceding or following
June 24. |
The only condition employees must meet to benefit from these rules is to be working for the employer on this upcoming June 24. The condition holding that employees must not be absent from work on the day preceding or on the day following that holiday, which generally applies to other legal holidays in Quebec, does not apply to the National Holiday.
Employers under federal jurisdiction
Employees working for businesses under federal jurisdiction are not covered by the NHA and are therefore not entitled to the National Holiday, at least in theory. That being said, federal employers here in Quebec will often give their employees the day off for this holiday.
The applicable rules will therefore depend on what is stipulated in the collective agreement, individual employment agreements or applicable policies, as the case may be.
Canada Day
Employers under provincial jurisdiction
The main rules that apply will depend on the following scenarios:
| Scenarios | Applicable rules |
|---|---|
| Employees who would normally work the Wednesday on which the holiday falls |
These employees will be entitled to one (1) paid day of leave this July 1. More specifically, an indemnity equal to 1/20 of the wages earned during the four (4) complete weeks of pay preceding the week of July 1, excluding overtime, must be paid to these employees. A different indemnity will apply, however, if these employees are remunerated by commission. |
| Employees who would not normally work the Wednesday on which the holiday falls |
Employers may choose either to pay these employees the indemnity indicated above (1/20) or grant them a compensatory holiday of one (1) day. This compensatory holiday, where applicable, must be taken on a date agreed upon with the employer or fixed by a collective agreement. No period restricts the time at which such holiday may be taken. |
| Employees who must, where applicable, work this Wednesday, July 1 |
Contrary to the National Holiday, no restriction as to the nature of the business's activities applies in the case of Canada Day. Employers may therefore demand, at least in theory, that some of their employees work this July 1. In such a case, in addition to paying employees who will be working this July 1 wages for the work done, employers must also pay them the indemnity indicated above (1/20) or grant them a compensatory holiday of one (1) day. In the latter case, the compensatory holiday must be taken within the three (3) weeks preceding or following July 1, unless a collective agreement provides for a longer period. |
To benefit from the above rules, not only must employees be working for the employer this July 1, they must also not have been absent from work, without authorization or without valid cause, on the working day preceding or on the working day following that date.
It should be specified, however, that the above rules may differ if, in the case of unionized employees, the applicable collective agreement provides for at least seven (7) non-working days with pay in addition to the National Holiday.
Employers under federal jurisdiction
The main rules that apply will depend on the following scenarios:
| Scenarios | Applicable rules |
|---|---|
| Employees who would normally work the Wednesday on which the holiday falls |
These employees will be entitled to one (1) paid day of leave this July 1. More specifically, an indemnity equal to 1/20 of the wages earned during the four (4) weeks preceding the week of July 1, excluding overtime, must be paid to these employees. A different indemnity will apply, however, if these employees are remunerated by commission. |
| Employees who would not normally work the Wednesday on which the holiday falls |
These employees will be entitled to one (1) paid day of leave that they may either add to their vacation, or take on a date agreed upon with the employer. However, this rule will not apply to employees governed by a collective agreement entitling them, each year, to at least nine (9) holidays with pay, in addition to vacation. |
| Employees who must, where applicable, work this Wednesday, July 1 |
Contrary to what prevails, in Quebec, in the case of the National Holiday, no restriction as to the nature of the business's activities applies in the case of Canada Day. Employers may therefore demand, at least in theory, that some of their employees work this July 1. In such a case, in addition to paying employees who will work this July 1 wages at a rate equal to at least one-half times (1 ½) their regular rate of wages for the time they work on that day, employers must also pay them the above-mentioned indemnity (1/20). However, specific rules will apply, if necessary: (1) to employees employed in a continuous operation under the Code and (2) to those in a position of manager or superintendent, or who exercise management functions. |
The only condition employees must meet to benefit from these rules is to be working for the employer on this upcoming July 1, subject to the specific rules applying to employees employed in a continuous operation under the Code. In fact, the requirement that the employee must have been employed by the employer for 30 days in order to receive holiday pay was repealed last fall.
It should be specified that the rules above could be different if, in the case of unionized employees, the applicable collective agreement were to grant rights and benefits at least as favourable as those provided in the Code.
A few practical considerations arising from the situation surrounding COVID 19
The context of the current pandemic in no way alters the various rules set out above. However, there are some practical considerations to keep in mind.
Laid-off employees
For employers under provincial jurisdiction, there exist, in our opinion, good arguments to support that employees who are laid off are not entitled to holiday benefits, particularly considering the fact that the layoff does not have the effect of severing the employment relationship, suspends the employee's obligation to perform work and, in turn, that of the employer to pay the employee his or her wages and the other pecuniary benefits derived therefrom 1.
Except as otherwise provided in the collective agreement, individual employment contracts or applicable policies, considering the case law that seems to be in the majority, provincial employers could assert, in our opinion, that they do not have to grant the above-mentioned leaves and indemnities (1/20) to their employees who will be laid off at the time of the National Holiday and/or Canada Day.
However, for employers under federal jurisdiction, especially considering the relevant provisions of the Code, which do not refer to the notion of work performance but rather to the notion of employment 2, the chances of success of such an argument are, in our opinion, more mitigated, all the more so as case law runs counter to this argument 3.
In this context, and although several arguments could, in our opinion, be put forward to argue that they do not have the obligation to grant the leaves and indemnities of (1/20) to employees who are laid off on Canada Day and/or the National Holiday, in order to avoid any risk, certain federal employers may still choose to grant the above-mentioned leaves and indemnities (to the extent that, in this last case, the collective agreement, individual employment contracts or applicable policies provide for benefits in this regard).
Employees whose hours are reduced
For employers under both provincial and federal jurisdiction, employees whose hours of work are reduced are entitled to holiday benefits, including benefits associated with the National Holiday and Canada Day.
The indemnity (1/20) to which these employees will be entitled could be less than the indemnity they would have received, had it not been for the reduction in their work schedule, since it is calculated based on wages earned over the four (4) weeks prior to the week on which the holiday falls.
Employees for whom the employer receives the Canada Emergency Wage Subsidy (CEWS)
When calculating the indemnity (1/20) to which their employees are entitled, if applicable, with respect to the National Holiday and/or Canada Day, employers under both provincial and federal jurisdiction must take into account the wages paid over the four (4) weeks preceding the week of the holiday, even if the employer received the CEWS for such period.
Footnotes
1 See in particular Industries Mailhot Inc. and Union des employées et employés de service, section locale 800, D.T.E. 2012T-302 (T.A.).
2 Article 192 of the Code provides that "every employee is entitled to and shall be granted a holiday with pay on each of the general holidays falling within any period of his employment."
3 See Re United Steelworkers, local 619 and Canadian Arsenals Ltd., 22 L.A.C. 1.
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