THE EMPLOYERS' EDGE
Provincial Election 2022: What Employers Need to Know
Last year, ahead of the federal election, the Employers’ Edge blog featured an article about employers’ obligations to employees pursuant to the Canada Elections Act. You may (or may not) be surprised to learn that there is a provincial counterpart, the Election Act, that will apply to provincially-regulated employers on June 2 when Ontarians head to the polls to elect the provincial government. There are two primary ways in which employees have rights under the Election Act: 1) if they are serving as a returning officer or poll official; 2) if they are voting.
Working the Polls
An employee in Ontario who is serving as a returning officer or poll official on June 2 is entitled to time away from work pursuant to the Election Act so long as they have requested leave at least seven days before the leave is to begin. The leave is job-protected, and employers cannot penalize employees for exercising their right to work at a polling station on election day.
Employees are not required to use any vacation time to be absent from work while they are working the polls, but they are not entitled to be paid by their employer for time off on the leave.
Time Off Work to Vote (maybe…)
Employees who are voting on June 2 may be entitled to a leave of absence to carry out their “civic duty”.
The Election Act provides that every employee who is qualified to vote will have three (3) consecutive hours free form work for the purpose of voting. Does this mean that all employers have to give their workers 3 hours off from their regular scheduled work day on June 2? No.
Polls in Ontario will be open from 9:00am to 9:00pm EST. An employee who will not be scheduled to work for any three consecutive hours during that span will not be entitled to a leave of absence under the Election Act for purposes of voting. For example, an employee who works a straight 9 to 5 schedule has more than 3 hours away from work after their shift to cast their ballot, and therefore does not qualify for the leave. The same applies for any employee whose work day does not start before 12:00 noon. But an employee who works 11:00am to 7:00pm for example, would be entitled to one hour off of work, to ensure that there are three consecutive hours in the day during which they can go vote.
The employee does not get to choose their time off of work however. The Election Act is explicit that any time off for voting will be granted at the time of day that best suits the convenience of the employer.
An employee who does qualify for time off of work to vote under the Election Act cannot have their pay deducted for the work day. So employers are better off to adjust the work shifts accordingly. For example, the 11:00am to 7:00pm shift can become a 10:00am to 6:00pm shift, or a 12:00 noon to 8:00pm shift. Of course regular statutory or workplace overtime rules and policies will apply.
Finally, an employer cannot penalize an employee for exercising their right to time off of work to vote on election day. However, an employee who requests and receives time off of work but is not actually voting (perhaps they voted early and/or by mail) was not entitled to time off of work and may properly be disciplined – within reason of course.
There are penalties under the Election Act both for interfering in a qualified person’s right to vote, and for breaching the provisions of the Act, carrying a fine of $5,000.00. So employers are advised to ensure that they understand their responsibilities on election day.
If you are an employer unsure how to handle an employee’s request for a leave of absence on June 2 to either work at a polling station or cast their ballot, reach out to the professionals at CCPartners for advice.
Click HERE to access CCPartners' “Lawyers for Employers” podcasts on important workplace issues and developments in labour and employment law.