Canada: Provincial Elections: Enabling Employees To Vote

The next Quebec provincial elections will take place on October 3, 2022. On this date, employees across the province will be called to the polls.

However, the right to vote also entails, in a parallel manner, certain obligations that fall on employers with regard to employees and voting time. The purpose of this bulletin is to summarize the rules applicable to employers in this regard.

Employers' Obligations

The Election Act ¹ (hereinafter the "Act") governs provincial electoral rights. The Act specifically provides that every employer must ensure that an elector in their employ has four consecutive hours in which to exercise their right to vote, while the polls are open.² The employer is required to release its employees, with pay, irrespective of the time normally granted for meals.

In order to be considered qualified to vote within the meaning of the Act, the employee must qualify as an elector, i.e., on polling day, they must be a Canadian citizen, 18 years of age or older, who has been a resident³ of Quebec for at least six months and who is not under curatorship⁴.

The Act also provides that the employer cannot make any deduction from the employee's wages or impose any penalty on them as a result of their absence from work during said leave⁵.

Polling Hours

Polling hours on election day are 9:30 a.m. to 8 p.m.⁶

Four (4) Consecutive Hours During Polling Hours

If the employee's work schedule allows them to have four consecutive hours to vote, the employer will not be required to release them during their working hours.

Conversely, if the employee's work schedule does not allow them this time, the employer must grant them the required leave, without loss of pay, in order that they have the said four consecutive hours and must determine the time of day when said leave is granted for this purpose.

In order to illustrate the above-mentioned guidelines, the following are some practical examples:

• If the employee's schedule is from 9:00 a.m. to 5:30 p.m., with a half-hour meal break, in order to meet its obligations, the employer must allow the employee to leave the premises at 4:00 p.m. Compensation for period during which the employee is absent should be the same as if they had been present at work.
• If an employee's shift begins at 1:30 p.m., the employer will be under no obligation with respect to said employee, since the latter has a period of four consecutive hours to vote, i.e., between 9:30 a.m. and 1:30 p.m.
• If an employee's shift ends at 4:00 p.m., the employer will be under no obligation with respect to said employee, since the latter has a period of four consecutive hours to vote, i.e., between 4:00 p.m. and 8:00 p.m.

Employer's Management Rights

In theory, nothing in the Act prevents an employer from invoking its management rights to modify an employee's schedule, subject to specific provisions provided in an employment contract or a collective agreement.

For example, if the employee normally works from 9:00 a.m. to 5:00 p.m., but their employer asks them to start an hour earlier, i.e., from 8:00 a.m. to 4:00 p.m. so that the employee can have four consecutive hours to vote before 8:00 p.m., the employer will not be required to pay them any additional compensation, because the employee benefits from the four consecutive hours provided in the Act.

Penalties Resulting from a Violation of the Act

As indicated, the Act provides that an employer is not allowed to make any deduction from the employee's wages or impose any penalty on them as a result of their absence from work during this leave.⁷ Failure by the employer to pay the employee the total amount of wages they would normally have earned on that day, had it not been for the leave taken to go to vote, is deemed to constitute a deduction.

Moreover, an employer who uses their authority or influence to induce one of their employees to decline being a member of the electoral staff or to renounce this position after having accepted it, would be in violation of the Act.⁸

Therefore, employers who fail to meet their obligations on election day may face severe penalties. In fact, a violation of the Act can give rise to the following fines:

• if the employer is a natural person: a fine of between $1,000 and $10,000 for a first offence and of between $10,000 and $30,000 for any recurrence within 10 years;⁶
• if the employer is a legal person: a fine of between $5,000 and $30,000 for a first offence and between $20,000 and $60,000 for any recurrence within 10 years.¹⁰

Furthermore, an employee who believes they have been the victim of a violation of the Election Act may also file a complaint with the Commission des normes, de l'équité, de la santé et de la sécurité du travail (CNESST).¹¹

Finally, interference with the operation of the company is not a valid reason for failing to comply with the Election Act.¹²

Waiver of Right

An employee may explicitly waive their entitlement to hours of leave granted under the Act. In this case, the employee may remain at work. For this purpose, the employee may also partially waive of their right, i.e., request their employer ensure that they are granted less than four hours of time to vote.

However, the employer may be required to prove that this choice was made voluntarily and was not the result of an act on their part aimed at hindering the exercise of the right to be granted leave.

Should you have any questions regarding your obligations as an employer in connection with the elections to be held on October 3, 2022, across the province, please do not hesitate to contact one of the professionals in the Labour, Employment & Human Rights group at Fasken.

Footnotes

1. Election Act, CQLR c E-3.3.

2. Ibid, s 335.

3. Civil Code of Québec, CQLR c CCQ-1991, art 77.

4. Supra note 1, s 1.

5. Ibid, s 335, para 3.

6. Ibid, s 333.

7. Ibid, s 335, para 3.

8. Ibid, s 556 (2)

9. Ibid, s 556, para 1.

10. Ibid

11. Ibid, s 335, para 4 and s 123 of the Act respecting labour standards

12. Syndicat des technologues d'Hydro-Québec and Hydro-Québec (individual grievances, Dominique Munger and others), 2017 QCTA 612

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.