Special Edition
Employment Standards Act Newsletter
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The
Fair Workplaces, Better Jobs Act, 2017, passed its final reading on November 22, 2017 and received Royal Assent on November 27, 2017.
Changes will be made to the
Employment Standards Act, 2000, the
Labour Relations Act, 1995, and the
Occupational Health and Safety Act. This newsletter will only be outlining the changes to the
Employment Standards Act, 2000. For unionized workplaces, there will be certain transition periods where a collective agreement is not immediately compliant with the legislative change. The length of these transition phases will be indicated in this newsletter.
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After October 1, 2019, wage increases will continue to be tied to the annual rate of inflation.
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Vacation Time & Vacation Pay
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Effective January 1, 2018
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After 5 years of service with the same employer, employees will be entitled to receive 3 weeks of paid vacation time. This translates to employees receiving 6% vacation pay on wages earned.
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Effective January 1, 2018, unless stated otherwise
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Personal Emergency Leave (PEL)
All employees, who have been employed for 1 week or longer will be entitled to receive 10 PEL days. The first
2 days will be paid. It no longer matters how many employees are employed at the workplace.
Employers are no longer allowed to request sick notes from a 'qualified health practitioner' for these 10 days of leave, but can still require employees to provide 'reasonable evidence'.
Employers are encouraged to review their existing paid leave entitlements and to reconsider how they ascertain their employees' rights to sick leave.
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Pregnancy & Parental Leave
The entitlement to 6 weeks of pregnancy leave in certain circumstances (miscarriages or stillbirths) has been increased to
12 weeks.
Parental leave has been changed from beginning no later than 52 weeks, beginning no later than
78 weeks after the child is born or comes into the employee's custody, care and control for the first time.
The entitlement to parental leave has been increased from:
- 35 weeks to 61 weeks for employees who take pregnancy leave; and
- 37 weeks to 63 weeks for all other new parents
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Family Medical Leave
The family medical leave has been increased from 8 weeks in a 26-week period to
28 weeks in a 52-week period.
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Critical Illness Leave
Previously Called Critically Ill Child Care Leave - Effective Immediately
This leave has been expanded to include a broad list of adult family members and children who are critically ill.
Employees are now be entitled to a leave:
- Up to 37 weeks to provide care or support to a critically ill minor child; and
- Up to 17 weeks in the case of a critically ill adult
The legislation allows for extensions in some cases and specifies how employers must ascertain entitlement to such leave, through a 'qualified health practitioner'.
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Child Death Leave
*New*
Employees who have been employed for 6 months or more with the same employer are now entitled to a leave,
without pay of 104 weeks in the case of a child's death.
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Crime Related Child Disappearance Leave
Previously Called Crime Related Child Death or Disappearance Leave
This leave now covers only crime related child disappearance and has increased from 52 weeks to
104 weeks leave without pay.
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Domestic or Sexual Violence Leave
*New*
An employee who has been employed with the same employer for at least 13 consecutive weeks is entitled to a leave of absence of up to
10 individual days and up to 15 weeks if the employee or child of the employee experiences domestic or sexual violence.
The first 5 days of the leave are paid. The leave can be used to seek medical attention, obtain services from a victim services organization, obtain psychological or other professional counselling, new living arrangements, or to seek legal assistance.
Employers must ensure confidentiality requirements are met with respect to this leave.
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Effective Date Unknown
A rule for overtime pay will be established for employees who have 2 or more regular rates of pay for work performed for the same employer and how those rates are applied with regards to overtime.
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Effective January 1, 2018
The calculation for public holiday pay under section 24 has been amended to be based on the number of days actually worked in a pay period, immediately preceding the public holiday.
The employer must provide an employee with a written statement that sets out certain information when a day is substituted for a public holiday.
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Effective April 1, 2018
Previously, equal pay for equal work prohibited wage gaps based on gender. It has now been amended and will be mandatory for employers to pay:
- Casual, part-time, temporary, and seasonal employees who are doing substantially the same work as full-time/permanent employees, the same rate of pay as full-time/permanent employees; and
- Temporary help agency employees who are doing substantially the same work as employees of the client, the same rate of pay as employees of the client.
Casual, part-time, temporary, seasonal, and temporary help agency employees will be allowed to ask their employer to review their rate of pay if they believe they're not receiving the same rate of pay as full-time/permanent employees who perform substantially the same work.
The employer will have to respond by either adjusting the employee's pay or giving the employee a written explanation.
Exceptions
The following are exceptions to the rule if the wage differences are based on:
- A seniority or merit system;
- A system based on earnings by quantity or quality of production; or
- Other factors that may also be allowed provided they are not based on sex or employment status.
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*New* - Effective January 1, 2019
Employees will be entitled to:
- Request schedule or location changes after 3 months of service and be free of reprisal for doing so; and
- Refuse shifts if they receive less than 96 hours notice and be free of reprisal, with certain exceptions.
Employers receiving such requests must discuss them with the employee and provide a written decision within a reasonable time period (including reasons if denying the request). There are no limits as to how many requests an employee can make.
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Right to Refuse Work on Short Notice
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Employees will have the right to refuse a shift or on call work
with less than 96 hours of notice. However, employees cannot refuse a shift or be on call with less than 96 hours notice if it is due to:
- An emergency;
- To remedy or reduce a threat to public safety; or
- Deliver essential public services.
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If an employee has more than one rate of pay, employers will be required to pay employees for
3 hours of work at their regular rate (if that's the rate they were scheduled for) or
the rate for the time worked if higher, plus their regular for the balance of the 3 hours if the employee:
- Regularly works more than 3 hours a day, shows up for work and works less than 3 hours, or not at all;
- The shift is cancelled within 48 hours of their scheduled start time, with certain exceptions;
- Is scheduled to be on-call but, despite being available to work, is either not called in to work or works less than 3 hours, with certain exceptions. This provision applies for each 24-hour period the employee is on call;
- Students who regularly work more than 3 hours a day, shows up for work and works less than 3 hours, or not at all.
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Exceptions
Employers will not be required to pay 3 hours for a cancelled shift if they were unable to provide work due to:
- Fire, lighting, power failure, storms or similar causes beyond their control; or
- The employee's work is weather-dependent, and the employer must cancel work due to weather-related circumstances.
Employers will not be required to pay for 3 hours or an on-call shift if:
- The employee is on call to ensure continued delivery of essential public services, regardless who delivers those services and the employee was not required to work.
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Employee Misclassification
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Effective Immediately
Employers cannot misclassify employees as independent contractors and treat employees as if they are self-employed and not entitled to employment standards protections. The onus of proof is on employers to prove that an individual is
not an employee.
The Ministry of Labour currently has a number of working groups established to look at how the changes will apply to a number of types of employment. These types of employment include:
- Homemakers
- IT Professionals
- Architects
- Supervisors/Managers
- Superintendants
- Residential Care Workers
Updates will be provided as they become available.
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Contact Us Today!
For more information on the
Fair Workplaces, Better Jobs Act, 2017, contact our Employment Standards Consultant,
Patti Conboy, or our Health & Safety Consultant,
Wiebke Wilkens.
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