Changes to the Employment Standards Act, 2000

November 23, 2017

In November, Bill 148, Fair Workplaces, Better Jobs Act, 2017 was passed and along with it, a number of new amendments have been adopted. Most of these new policies come into effect in 2018, and businesses need to be prepared to meet compliance. 

While lengthy, below are the details of the key changes.  

Minimum Wage

Following the regularly-scheduled increase to the minimum wage rate on October 1st, 2017, the minimum wage rate will increase again on January 1, 2018 and on January 1, 2019.

General:   

  • $11.60/hour on October 1, 2017;
  • $14.00/hour on January 1, 2018; and
  • $15.00/hour on January 1, 2019

Special as of  January 1, 2018:

  • Students under 18 – $13.15/hour
  • Liquor servers – $12.20/hour
  • Hunting and fishing guides – $70.00 for less than 5 consecutive hours; $140.00 for more than 5 hours
  • Homeworkers – $15.40/hour

After January 1, 2019, once the minimum wage rate reaches $15.00 per hour, the ESA will revert to its existing process of annual increases based on changes in the Consumer Price Index.

Equal Pay Regardless of Employment Status

Effective April 1, 2018, employers will be required to pay employees the same rate of pay for doing the same work regardless of their employment status (i.e., full-time, part-time, casual, temporary or seasonal).

Employees will have a right to request a review of their salary and wages, and employers are required to respond by either increasing the wage rate or providing a written explanation of the differential. Employers may not reduce the rate of any other employees in order to comply with this obligation, and unions (and other organizations) are prohibited from causing or attempting to cause the employer to contravene these obligations.

Exceptions apply to:

- A seniority system (for example, under a collective agreement)
- Performance or merit-based system
- Pay determined by quality or quantity of production

If a collective agreement is in place on April 1, 2018 which contains provisions that are not consistent with this obligation, those provisions will prevail until a new or renewal collective agreement comes into effect.

Increased Vacation Leave and Vacation Pay

Effective January 1, 2018, employees with less than five (5) years of service with their employer will continue to be entitled to two (2) weeks of vacation after each vacation entitlement year.  However, effective on that same date, employees with five (5) or more years of service will become entitled to three (3) weeks of vacation after each vacation entitlement year.  This increase in vacation entitlement for employees with at least five (5) years of service will take effect for a vacation entitlement year that ends on or after December 31, 2017.  Employers will not be required to provide employees with additional vacation days for a vacation entitlement year that ended before that date.

Employees who reach five (5) years or more of service and become entitled to the additional week of vacation under this provision will also be entitled to receive 6% of the wages, excluding vacation pay, that they earned during the period for which vacation is given as vacation pay.

Public Holiday Pay

There are several important changes to public holiday pay that will take effect on January 1, 2018.

The calculation of the amount of holiday pay to which an employee will be entitled for a public holiday will be simplified. 

Commencing on January 1, 2018, an employee’s public holiday pay is to be calculated as follows:

Public Holiday Pay = total regular wages earned in pay period immediately preceding the public holiday / # of days worked in that pay period

Where an employee is on leave or vacation during the pay period preceding the holiday, their holiday pay entitlement is to be calculated based on the pay period before the start of that vacation or leave. For employees who were not employed during the pay period preceding the public holiday, their holiday pay entitlement is to be calculated based on the number of days they worked and regular wages they earned during the pay period that includes the public holiday.

For employees who are required to work on a public holiday, they will become entitled to receive: (i) public holiday pay, plus (ii) premium pay for the hours worked.  The proposed changes will remove the option for the employer to provide employees who are required to work with a substitute day off in place of the public holiday.

There will also be new substitution rules where a public holiday falls on an employee’s day off, and the employee does not work, or when the employee is on vacation. The new provisions would require that the substitute day given to the employee be either the first work day after the public holiday, or the last work day prior to it. Under the current ESA, a substitute holiday must be scheduled for a day that is no later than three (3) months after the public holiday for which it was earned, or, if the employer and employee agree in writing, the substitute day off can be scheduled up to 12 months after the public holiday. An employer and an employee will still be entitled to agree that the employee will be paid public holiday pay instead (in which case no substitute day off need be given).

Scheduling Rules

- Employees are given the right to request schedule or work location changes without reprisal (available to any employee with at least 3 months’ service).

- Employees are given the right to refuse a shift or to refuse being placed “on call” without reprisal if there is less than 4 days’ notice provided.

- Employers are obligated to provide 3 hours’ pay at the regular rate if a shift is cancelled within 48 hours of its scheduled start. This obligation would also apply if an employee is scheduled to be “on call”, but that status is cancelled within the same 48-hour window.

- A new minimum “on call” payment – 3 hours’ pay at the regular rate – if an employee is placed on call and not called into work. This applies to each day of “on call” status, but would only apply once per day.

- Amendment of the 3-hour reporting rule to require payment at the regular rate of pay (as opposed to the minimum wage rate as the current rule has been interpreted as requiring).

There will be some leeway for collective agreements to override the new rules. These provisions would come into effect on January 1, 2019.

Leaves of Absence

Bill 148 includes the following proposed changes effective January 1, 2018:

Pregnancy and Parental Leave - the length of pregnancy leave for employees who suffer a still-birth or miscarriage will be extended from 6 weeks to 12 weeks after the pregnancy loss occurs.

The length of parental leaves will increase by a total of 26 weeks:

- from 35 weeks to 61 weeks for employees who took a pregnancy leave and
- from 37 weeks to 63 weeks for employees who did not

Related amendments will adjust the timing of when parental leaves must begin and end to reflect the longer period of leave. These changes will bring the ESA into line with recent changes to the Employment Insurance Act (in effect with December 3, 2017 https://hicksmorley.com/tag/bill-c-44-budget-2017/)

Personal Emergency Leave (PEL) – ten (10) days of personal emergency leave (PEL) will be extended to employees of employers with fewer than 50 employees. The first two (2) days of PEL must now be paid, while the remaining eight (8) will be unpaid. The list of reasons for which PEL may be taken will be expanded to include domestic violence or sexual violence or the threat of either. Employers will be entitled to ask for evidence that is “reasonable in the circumstances” confirming that an employee is entitled to PEL, but will not be permitted to require an employee to provide a medical certificate to confirm entitlement to PEL.

Family Medical Leave (FML) – employees are currently entitled to take eight (8) weeks of unpaid leave to care for a family member where a qualified health practitioner has certified that there is a significant risk of them dying within a period of 26 weeks. Under the proposed changes, employees will be entitled to 27 weeks of leave without pay in a 52 week period to provide care to a family member if there is a significant risk of them dying within 52 weeks and the leave can be extended for a further 27 weeks if the family member does not die.

Leave without pay for child death – employees who have been employed for at least six (6) months are currently entitled to take up to 104 weeks of unpaid leave if a child of the employee dies and it is probable that they died as a result of crime. Under the proposed changes, this leave will be expanded so that employees who have been employed for at least six (6) months will be entitled to a single period of unpaid leave of up to 104 weeks if their child dies, regardless of the circumstances.

Leave without pay for crime-related child disappearance –employees who have been employed for at least six (6) months are currently entitled to an unpaid leave of absence of up to 52 weeks if a child of the employee disappears and it is probable that the child disappeared as a result of a crime. Under the proposed changes, these same employees will be entitled to a single period of unpaid leave of up to 104 weeks.

Other Changes  

Misclassification of employees as independent contractors – employers will be subject to penalties, including prosecution, public disclosure of a conviction and monetary penalties for misclassifying employees as independent contractors. In the event of a dispute, the employer will be required to prove that the individual is truly an independent contractor.

Assignment employees entitled to notice of termination – THAs will be required to give assignment workers one week’s notice (or pay in lieu thereof) when an assignment that was scheduled to last longer than three (3) months is terminated early.

Overtime pay – where an employee holds more than one position with an employer, the employer will be required to pay them for overtime at the rate of the position they were working during the overtime period.

Sources: 

https://www.globalworkplaceinsider.com/2017/09/status-update-on-bill-148-the-overhaul-of-ontarios-labour-and-employment-laws-continues/

http://www.casselsbrock.com/CBNewsletter/Changes_to_Bill_148__More_Obligations_for_Ontario_Employers

https://www.labourandemploymentlaw.com/2017/05/expanded-olrb-powers-and-other-significant-changes-to-ontarios-labour-relations-act/

 

Knowledge. Clarity. Action.