October 16, 2021

Volume XI, Number 289

Advertisement
Advertisement

October 15, 2021

Subscribe to Latest Legal News and Analysis

October 14, 2021

Subscribe to Latest Legal News and Analysis

October 13, 2021

Subscribe to Latest Legal News and Analysis

Election Day Is Almost Here—The Canada Elections Act’s Time-Off Requirements

Canadian voters will be going to the polls for a federal general election on September 20, 2021. For employers, this means certain rules under the Canada Elections Act will apply on Election Day. Most importantly, employers must ensure that qualified electors (Canadian citizens 18 years of age and older) are guaranteed a period of time free from work to vote while polls are open.

The Canada Elections Act specifies that the following rules apply to employers on Election Day:

Consecutive hours for voting

132(1) Every employee who is an elector is entitled, during voting hours on polling day, to have three consecutive hours for the purpose of casting his or her vote and, if his or her hours of work do not allow for those three consecutive hours, his or her employer shall allow the time for voting that is necessary to provide those three consecutive hours.

Time at convenience of employer

(2) The time that the employer shall allow for voting under subsection (1) is at the convenience of the employer.

Transportation companies

(3) This section and section 133 do not apply to an employee of a company that transports goods or passengers by land, air or water who is employed outside his or her polling division in the operation of a means of transportation, if the additional time referred to in subsection (1) cannot be allowed without interfering with the transportation service.

No penalty for absence from work to vote

133(1) No employer may make a deduction from the pay of an employee, or impose a penalty, for the time that the employer shall allow for voting under subsection 132(1).

Hourly, piece-work or other basis of employment

(2) An employer who pays an employee less than the amount that the employee would have earned on polling day, had the employee continued to work during the time referred to in subsection 132(2) that the employer allowed for voting, is deemed to have made a deduction from the pay of the employee, regardless of the basis on which the employee is paid.

Prohibition

134 No employer shall, by intimidation, undue influence or by any other means, interfere with the granting to an elector in their employ of the three consecutive hours for voting, as provided for in section 132.

For most employers, on Election Day the following rules apply:

  • A qualified elector must have three consecutive hours off from work during the time that polls are open in which to vote.

    • Transportation workers engaged in the operation of a means of land, air, or water transportation, who are employed outside their polling division and who cannot be provided with the time free from work without interfering with the transportation service, are not subject to this rule.

  • Employers are prohibited from penalizing employees who need time off during the workday to vote, such as by reducing their pay.

  • If an employee requires time off during the workday to vote, only the employer may choose when the time will be taken.

While some employees have the misconception that they must be given paid time off during the workday to vote, this is not necessarily correct. The Canada Elections Act requires only that the elector have three consecutive hours free from work during the time that polls are open—it does not necessarily require that those be working hours.

For example, if the polls are open from 9:30 a.m. to 9:30 p.m., and an employee works from 8:00 a.m. to 5:00 p.m., that employee already has four-and-a-half hours free from work (from 5:00 p.m. to 9:30 p.m.) during which to vote, so the employer would not be required to provide any time off work to vote.

Employers have several options for complying with the three-consecutive-hour requirement with respect to employees who need time off from work to vote. For example, if an employee works from 9:00 a.m. to 9:00 p.m., and the polls are open from 9:30 a.m. to 9:30 p.m., the employer could allow the employee to:

  1. start work at 12:30 p.m., three hours after the polls open;

  2. take a three-hour break during the employee’s shift, starting at any time from 9:30 a.m. to 6:30 p.m., such that the employee would have three hours off while polls are open; or

  3. leave work early to vote, at 6:30 p.m., three hours before the polls close.

Whichever option an employer chooses to use in this scenario, the law prohibits the employer from reducing the employee’s pay or imposing any penalties for taking the time off to vote.

Employers may want to keep their obligations under the Canada Elections Act in mind at this time—both because voting is a civic responsibility and because the law makes it an offense for employers to fail to provide time off to vote if required by the act or to penalize employees or reduce their pay for taking time off work to vote in accordance with the act.

© 2021, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.National Law Review, Volume XI, Number 238
Advertisement
Advertisement
Advertisement
Advertisement
Advertisement
Advertisement

About this Author

Michael Comartin, Ogletree Deakins Law Firm, Labor and Employment Attorney
Partner

Michael is a partner in Ogletree Deakins’ Toronto office. His diverse practice spans all areas of employment law, labour law, privacy, wage and hours issues, human rights, accessibility, and employee benefits and executive compensation. Michael also has experience with class actions, appellate litigation, M&A/restructuring, and general litigation. He regularly represents employers in judicial review proceedings

Michael has appeared before the Court of Appeal for Ontario, the Divisional Court, the Superior Court of Justice, the Federal Court of Appeal, the Federal Court, the...

416-637-9057
Advertisement
Advertisement
Advertisement