This year Christmas Day and New Year’s Day fall on non-working days for many employees. Christmas this year is celebrated on Sunday, December 25, 2016 and New Years Day on Sunday, January 1, 2017. Many employers are looking for information specific to their jurisdiction, on how to deal with public holidays on non-working days, like the weekends.

What does the law say about public holidays on non-working days?

Under Employment/Labour Standards legislation, when public (statutory) holidays fall on non-working days, the general rule is that an employer must provide a substituted day off, which is another working day off designated to replace a public holiday. Employees are entitled to be paid public holiday pay or regular pay (depending on the province or territory of employment) for a substituted holiday. However, there are different rules, exceptions and special rules for certain jurisdictions.

Specifically,

In federally regulated workplaces, as a rule, if a public holiday falls on a Saturday or Sunday for an employee (whether full-time or part-time), the employee is entitled to a holiday with pay on the working day immediately preceding or following the public holiday. If one of the above holidays fall on a non-working day other than Saturday or Sunday, then a holiday with pay is to be added to the employee’s annual vacation or granted at another mutually convenient time.

When the parties are subject to a collective agreement, the employer may substitute any other holiday for a public holiday provided for in the Code, if the substitution is agreed to in writing by the employer and the trade union. In the case of employees who are not subject to a collective agreement, an employer may substitute any other holiday for a public holiday if the substitution has been approved by at least 70 per cent of the affected employees. The employer must post a notice of the substitution for at least 30 days before the substitution takes effect.

In Alberta if a public holiday falls on a non-working day (other than vacation) for an employee (whether full-time or part-time), for most employees this is Saturday or Sunday, the employee is not entitled to a holiday with pay and the employer is not required to provide a substituted day off with pay. Eligible employees are entitled to the day off with pay only if the public holiday falls on a day that is normally a working day for employees.

In British Columbia and Quebec, when a public holiday falls on a non-working day, an eligible employee is entitled to an average day’s pay and the employer does not have to provide another day off.

In Manitoba, when a holiday falls on a non-working day, employees are entitled to a substituted day off with regular wages no later than their next annual vacation or at a time agreed to with the employer. However, if New Year’s Day, Canada Day or Christmas Day falls on a Saturday or Sunday, that is not a normal working day, employees must be provided a day off with regular wages on the first working day after the holiday.

In New Brunswick, if the holiday falls on a non-working day or an employee’s vacation, the employer must designate a working day no later than the employee’s next vacation to be deemed as a public holiday. However, the employer, in agreement with the employee or the employee’s representative, can pay regular wages for the holiday and not provide another day off.

In Newfoundland and Labrador, when a holiday falls on a non-working day, the employee is entitled to have his or her next working day off or another day off as agreed upon by the employer and the employee. Where a public holiday occurs during an annual vacation, the latter must be extended by one working day.

In the Northwest Territories and Nunavut, where the holiday falls on a non-working day, the employee must be paid for the holiday or receive a day off with pay at some other time convenient for him or her and the employer. This day off must be scheduled not later than the employee’s next annual vacation or the termination of his or her employment.

In Nova Scotia, if a holiday falls on a non-working day, employers must grant their employees a substituted day off with pay either (a) on the first working day after the holiday; (b) on the day immediately following the annual vacation; or (c) on another time mutually agreed upon.

In Ontario, if a holiday falls on a day that is not ordinarily a working day for the employee or during a vacation, the employer must either (a) provide another day off with public holiday pay, not later than three months after the public holiday, or no later than 12 months with the employee’s consent; or (b) if the employer and employee agree, pay public holiday for the day.

In Prince Edward Island, if a holiday falls on a non-working day, the employer must grant the employee another day off with regular pay either a) on the next working day immediately after the holiday; b) the day immediately after after the employee’s vacation; c) or on another day mutually agreed upon before the employees next paid vacation. If a holiday occurs during an employee’s vacation, the period of vacation is extended by one working day.

In Saskatchewan, as a rule, where the following public holiday falls on a Sunday (e.g.: New Year’s Day, Christmas Day or Remembrance Day), the holiday is to be observed on the following Monday, except for establishments normally open on Sundays. The Employment Act does not mention Saturday. Specifically, as per Section 29 of the Employment Standards Regulations: if your establishment is normally open on a Sunday, Christmas is observed on Sunday, December 25; if your establishment is normally closed on Sunday, Christmas is observed on Monday, December 26. As per Section 29 of the Employment Standards Regulations: if your establishment is normally open on a Sunday, New Year’s Day is observed on Sunday, January 1; if your establishment is normally closed on Sunday, New Year’s Day is observed on Monday, January 2.

In the Yukon, when a holiday falls on a non-working day, the employee is entitled to have his or her next working day off or another day off as agreed upon by the employer and the employee. Where a public holiday occurs during an annual vacation, the latter must be extended by one working day.

More detailed information about collective agreements, working on the holiday, holiday pay etc. can be found in our HRinfodesk article here (login required, take a free trial).

How do employers intend to deal with public holidays on non-working days (where applicable)?

To give employers more of a guideline of how to deal with Christmas and New Years Day in 2016, which fall on non-working days, to balance customer demands and operational needs, the following are some suggestions:

Christmas Day (Sunday, December 25) — In the past when this has occurred, taking the various legislative rules into consideration, we’ve seen employers give the Monday (December 26), or in Ontario and federally regulated workplaces Tuesday (December 27) off (since the 26 is Boxing Day, a public holiday in those jurisdictions) in lieu of the public holiday of Christmas Day that falls on a non-working day. However, a significant number of companies have provided the Friday before the holiday off (this year, December 23). In provinces or territories having to deal with only one public holiday (Christmas), the most common provided day off is usually the Friday before the holiday (this year, December 23). Employers undecided about their policy usually leave the decision to their employees.

New Years Day (Sunday, January 1) — Several companies plan to give Monday, January 2 off, in lieu of the public holiday that falls on a Sunday. However, in the past, a large proportion opted to give the Friday before New Year’s (this year, December 30); the most common day off we see by industry is the Friday. Employers undecided about their policy left the decision to their employees.

A considerable number of organizations increase the number of floater days in the year in light of the weekend public (statutory) holidays. Certain organizations decide to close from December 24 to January 2. Moreover, if Christmas Day is a Sunday, the common week off is, December 26, 27, 28, 29,30 and January 2.

Last words on public holidays on non-working days

What is important is that once you’ve made a decision on how to deal with Christmas Day and New Years Day falling on non-working days, you must inform employees immediately so that they can plan their work schedule, work load, days off and traveling time to see family accordingly.

The days you plan to be closed should also be communicated to your customers, vendors and suppliers, as well as which designated essential services will continue to operate, if any, during the holidays.

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