Q: Can you please confirm for me the rules about an employer requiring employees to take leave.

The situation is: A client has to close for up to 6 weeks to get some necessary repairs done to the water, which involves ripping up part of the office floor and there is no where else employees can work and they cannot work from home. The work is due to start in about 5 weeks.

He has four employees, but only two staff have any annual leave entitlement, the other staff only have accrued leave.

He has said he may need to let the staff go, which he doesn’t want to do but cannot afford to pay them while the work is taking place, as he will not have any money coming in.

Can he ask the employees to take what leave they have available, and then for them to take leave without pay, accepting that some of them may find another job and not come back? Or can he only ask the two staff who have entitlement to take leave? And how much leave can he request them to take (of the two with leave entitlement, one has 2.25 weeks, the other has 4 weeks).

A: Under the Holidays Act there is Section 19 where the employer can give employees not less than 14 days’ notice that they will be required to take annual holidays.  This must be provided in writing.

Otherwise the employer could offer unpaid leave for employees that do not have leave that once the work is done they can come back to work.  Just get agreement on if this unpaid leave greater than a week will be counted as continuous employment or a break in service.

Q: Does it matter if the leave is accrued leave?

A: You cannot use Section 19 with accrued leave.  It would have to be agreed with the employer and taken as leave in advance (but nothing to do with section 19).