A federal election is being held on May 2, 2011. The hours of voting on election day have been staggered according to time zone so that the majority of results are available at approximately the same time across the country. The following are the polling hours per time zone:

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WHO HAS THE RIGHT TO VOTE?

The Canada Elections Act (the Act )1 governs electoral rights. All Canadian citizens who are over eighteen years of age on election day are eligible to vote. Under the Act, eligible voters are called “electors”.

ARE EMPLOYEES ENTITLED TO TIME OFF WORK TO VOTE?

Under the Act, every employee who is an elector is entitled to have three consecutive hours, during voting hours on election day, to be away from his or her employment duties in order to cast his or her vote. If the employee’s work hours do not allow the employee to have the three consecutive hours within polling hours, the employer has the obligation to provide the employee with time off work in order to provide the three consecutive hours.

The following is an example illustrating an employer’s obligation under the Act:

if an employee is scheduled to work from 9:00 am to 5:00 pm, and the polling hours are from 9:30 am to 9:30 pm, there would be no need for the employer to adjust the employee’s work hours on polling day, as such work hours would permit the employee to be away from his or her employment duties for at least three consecutive hours within the polling hours to cast his or her vote. However, if an employee is scheduled to work from 11:00 am to 7:00 pm on polling day and polling hours are from 9:30 am to 9:30 pm, the employer would have an obligation to adjust the employee’s work hours in order to provide the employee with the three consecutive hours. The employer has the discretion to adjust an employee’s schedule so that the three consecutive hours occur at the beginning or the end of the workday, or during work hours. The three consecutive hours can be scheduled to include paid or unpaid hours (such as unpaid lunch breaks). The Act explicitly provides that the time that the employer allows for voting is to be at the convenience of the employer.

Note that the entitlement to the three consecutive hours does not apply to an employee of a company that transports goods or passengers and who is employed outside his or her polling division in the operation of the transportation service, if the adjustment in the employee’s work hours cannot be allowed without interfering with the transportation service.

IS AN EMPLOYEE ENTITLED TO BE PAID FOR TIME OFF TO VOTE?

In reducing an employee’s work hours on the polling day for the purpose of providing the “three consecutive hours”, employers are not permitted to make a deduction from the pay of an employee or impose a penalty, regardless of the basis on which the employee is paid. An employer who pays an employee on the polling day less than the amount that the employee would have earned, had the employee continued to work during the time that the employer allows the employee to be away from his or her employment duties for the purposes of the “three consecutive hours”, would be deemed to have made a deduction from the pay of the employee. The employer’s action in such a scenario would constitute a contravention of the Act.

IS THERE A PENALTY FOR CONTRAVENING THE ACT?

The Act provides for a fine of up to $1000, up to three months’ imprisonment, or both, for a contravention of the provisions of the Act that pertain to an employee’s right to three consecutive hours off from work to vote on election day.

The Act also expressly provides that no employer may, 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. Any such intimidation or undue influence is subject to a fine of up to $2000, up to one year imprisonment, or both.