With the 2021 federal election taking place on Monday, September 20th, some employers may be unclear on what exactly their relevant obligations are to their employees. Such uncertainty may be more pronounced in the age of COVID-19, in which many employees are enjoying more flexible working arrangements.
Basic Rights
Under the Canada Elections Act (the “Act”), every employee who is an elector is entitled to three consecutive hours of time off work to vote between when the polls open and when they close, without any corresponding deduction in pay or other penalty.[1] This requirement applies irrespective of whether or not an employee is working from home.
Employers are able to choose the most convenient time at which an employee can leave work in satisfaction of the voting time requirement.[2] Furthermore, this requirement only applies if, and to the extent that, an employee’s hours of work do not allow for the three consecutive hours of voting time.[3] In other words, if an employee already has three consecutive hours in which their local polling station is open and they are not scheduled to work, their employer is not required to provide them an additional three hours of time off. If an employee’s schedule only interferes with their voting time by one hour, for example, their employer is only required to provide the one hour of time off work necessary to ensure that the employee has three consecutive hours in which they can vote.
While “elector” is defined as a Canadian citizen of 18 years of age or older, “employee” is not defined under the Act.[4] Where a worker’s employment status is unclear, employers should refer to the definition of “employee” under the Employment Standards Act, 2000, or the Canada Labour Code, as applicable.[5]
Exemption for Transportation Companies
The only employees not entitled to three hours of voting time away from work are those in the transportation industry where:
- the employer is a company that transports goods or passengers by land, air or water;
- the employee is employed outside of their polling division in the operation of a means of transportation; and
- the time off cannot be allowed without interfering with the transportation service.[6]
Penalties for Non-Compliance
Failing to provide an employee with three consecutive hours to vote, and deducting an employee’s pay or imposing some other penalty for the time off are both offences under the Act.[7] Penalties can range from a fine of up to $2,000, up to three months in jail, or both.[8]
Moreover, employers are, of course, prohibited from actively interfering with the granting of the three consecutive hours of voting time, whether “by intimidation, undue influence or by any other means”.[9] Penalties can range from a fine of up to $50,000, up to five years in jail, or both.[10] While there is no judicial interpretation of any of the applicable provisions of the Act, the prohibition on ‘any means’ of ‘interference’ is broad enough to prevent employers from requiring non-exempt employees to vote at advance polls or by mail rather than in person on Election Day.
COVID-19 Precautions
The 2021 federal election is unique in taking place during the COVID-19 pandemic. While employees must be allowed to vote in person, employers should ensure that adequate safety measures are in place to protect against a possible outbreak.
Please do not hesitate to reach out to our team with any questions.
[1] S.C. 2000, c 9, ss. 132(1), 133.
[2] Ibid, s. 132(2).
[3] Ibid, s. 132(1).
[4] Ibid, s. 2(1).
[5] S.C. 2000, c. 41; R.S.C. 1985, c. L-2.
[6] Ibid, s. 132(3).
[7] Ibid, s. 489(1)(a).
[8] Ibid, ss. 489(1)(a), 500(1).
[9] Ibid, s. 134.
[10] Ibid, ss. 489(3)(a), 500(3).
