Explainer: Can my employer force me to take annual leave over Christmas?

Explainer - Christmas is just over the horizon. Can your employer force you to take leave over the holiday period?Many companies shut down entirely for the Christmas break from late December to early January as families head off to campgrounds, baches and beaches around Aotearoa.But what if you don't want to take leave, or don't have enough time saved up?"Employees can raise their concerns, but they cannot simply opt out of a lawful annual closedown because they would rather take leave at another time," said Aishleen Sluiters, partner at the employment law firm Edwards Sluiters.Here are the options employees have.Do I have to take leave over Christmas?If your employer has notified you they are having an annual closedown, they can require you to take your leave at a particular time each year.If you've got annual leave backed up, you'll have to use it."The law allows an employer to require employees to take annual leave during that closedown, even if the employee disagrees," Sluiters said.Under the Holidays Act 2003, an employer is only allowed to have one annual closedown in any 12-month period - it doesn't have to be over Christmas.It can also be a partial closedown of just part of a workplace, or for different parts of a workplace at different times, perhaps over seasonal work demands.You can also have a closedown where the workplace stays open, but the employer temporarily stops work for some employees, leaving a skeleton crew to staff it.Business are allowed to have annual closures.RNZ Marika KhabaziWhat does my boss have to tell me about closedowns?Your employer must give at least 14 days' notice that a closedown period is going to be enforced.Employees can challenge being forced to take leave if the workplace hasn't given that notice, ignored a more generous employment agreement, or is trying to use the annual closedown rules for a closure that doesn't qualify under them."A good first step is to check the employment agreement and raise the problem with the employer. An employment lawyer can help explain the options," Sluiters said."If the employer has breached minimum entitlements, enforcement options may be available through a Labour Inspector or the Employment Relations Authority. The right approach depends on the specific breach."However, starting in 2028, there are going to be some changes, due to the Employment Leave Bill passed this year. It comes into effect 6 August 2028, repeals and replaces the Holidays Act 2003 and will bring in many changes in the future to how leave is calculated.Employers will then have to give 21 days' notice of an annual closedown instead of 14. That notice must also now be given in writing and include information about the dates of the annual closedown, any requirements for employees to take paid or unpaid leave, and any other leave arrangements that are available.But until mid-2028, the current rules remain in place.Employees and employers can also agree to other kinds of closedowns outside the annual closedown rules, Employment New Zealand says.What if I don't have enough annual leave?If you don't have enough leave, you'll need to talk to your employer about options. That could include taking leave in advance or taking some as unpaid leave."There is no automatic hardship exemption in the closedown rules," Sluiters said."Financial difficulty does not, by itself, give an employee the right to keep working or require the employer to provide extra paid leave."You could also make an agreement with your employer to use up other kinds of leave during an annual closedown, such as alternative holidays.Do public holidays count as part of my leave balance?No.This year, the public holidays over summer are Christmas Day on Friday 25 December, Boxing Day which is going to be observed on Monday 28 December, New Year's Day on Friday 1 January and Day After New Year's Day which will be observed on Monday 4 January.If you're a new employee, you might not be entitled to annual leave.RNZ / Diego OpatowskiWhat if I'm a new employee and don't have any holiday time yet?Currently, you have to work 12 months of continuous employment before your four weeks of annual leave begins. Individual employment agreements could offer different terms."An employee can raise the issue early and ask whether the employer will agree to leave in advance," Sluiters said."That means taking paid annual leave before the employee has become entitled to it. The employer can agree but does not have to."If the employee isn't entitled to annual holidays at all yet, they must be paid 8 percent of their gross earnings so far as of the annual closedown date, according to Employment New Zealand, and also move the anniversary date for their annual holidays entitlement to either the date the annual closedown starts, or another nearby date that their employer picks.It's all rather complicated, but is explained in full detail on Employment NZ's website here.That's also another thing that will change in 2028 with the new law - an employee's leave entitlement will then begin immediately from the start of employment, instead of waiting a year to kick in.Look, I'm going to Bali and I want to use my leave time at another time of the year instead. Can I?That's really up to your individual employer, but it's not a mandatory right for workers."Employees can ask to preserve their annual leave for a later trip, but the employer is not required to agree," Sluiters said. A lawful closedown means employers can require you to use your available annual leave."There may still be options to discuss. For example, an employee could ask whether work will be available during the closedown. This is something to negotiate, not a right to keep working."An employee could also ask to take leave in advance for the later trip or use an existing alternate holiday day to fill the gap, she said."The best practical step for an employee is to discuss both the closedown and their later trip before making non-refundable bookings."Many workers will still be asked to show up over Christmas.Ke-Xin Li / RNZI don't want to work over Christmas at all but I'm being asked to. Can I fight it?"Employees do not automatically get the whole Christmas break off," Sluiters said."For ordinary working days, the employee and employer generally need to agree on annual leave dates. An employer must not unreasonably refuse an annual leave request."Your employer can only require you to work on a public holiday if it falls on a day you would have otherwise worked, or if working on the holiday is part of your employment agreement, according to Employment New Zealand.If you're being told to work on a public holiday outside your agreed hours, it has to be covered under an availability clause in your agreement.And of course, if you work on a public holiday, you must be paid time and a half and given a day in lieu if it would be an otherwise working day for you (unless you're employed only to work on public holidays).It's best to look at your own circumstances now if you haven't, as holiday rosters are quickly being settled as end-of-year preparations kick in."Employees who have concerns should check their employment agreement and discuss their circumstances with their employer as early as possible," Sluiters said.