Changes to the Employment Standards Act, 2000 (“ESA”)

December 1, 2017

On June 1, 2017, the Ontario government introduced Bill 148, the Fair Workplaces, Better Jobs Act, 2017 (“Bill 148”). The Bill will come into force on January 1, 2018 (with few exceptions noted below) and will introduce a range of changes to the ESA. The purpose of this memo is to highlight some of these changes. Employers with employment agreements that might conflict with any of these revised terms in any way should be looking at amending such agreements so that they are in compliance.

This memo is not exhaustive of the changes that will be made to the ESA. For further information, please contact LaBarge Weinstein LLP.

Records

Under the ESA, employers are required to maintain a range of records with respect to their employees. Bill 148 adds several new record-keeping requirements including the need to record: (i) the dates and times that an employee is scheduled to work or to be on call for work and any changes made to the on-call schedule (effective January 1, 2019), (ii) the dates and times that an employee worked, and (iii) any cancellations of a scheduled day of work or scheduled on call period of an employee, and the date and time of the cancellation (effective January 1, 2019). Information required to be recorded may be required to be retained for up to three years depending on the type of information. There are some limited exceptions to the record keeping requirements for salaried employees.

Scheduling

Effective January 1, 2019, Bill 148 sets out new scheduling rules including the following:

(i) Employees that have been employed for a minimum of three months will have the right to request schedule or location changes (which may be granted or denied by the employer with reasons).
(ii) Employees who regularly work more than three hours a day but upon reporting to work are given less than three hours of work, will need to be paid three hours, equal to the greater of (a) the amount the employee earned for the time worked, and (b) their regular rate of pay for the three hours.
(iii) If an employee is on call and is either not required to work or works for less than three hours despite being available to work longer, the employee will need to be paid three, equal to the greater of (a) the amount the employee earned for the time worked, and (b) their regular rate of pay for the three hours. This would be required for each 24-hour period that the employee is on call.
(iv) Employees will have the right to refuse shifts that they were not scheduled to work for or to be on call for if their employer asks them to work with less than 4 days’ notice.
(v) If an employer cancels a shift within 48 hours of its start, the employer will need to pay the employee three hours at their regular rate of pay.

Minimum Wage

The general minimum wage for general employees above the age of 18 will be increased to $14 per an hour as of January 1, 2018 and $15 per an hour as of January 1, 2019. Minimum wages for students, liquor servers, hunting and fishing guides, and homeworkers will also be increased.

Paid Vacation

Employees with at least 5 years of service will be entitled to a minimum of three weeks of paid vacation as opposed to the current two week minimum.

Equal Pay for Equal Work

An employer will not be able to pay an employee at a rate less than another employee because of a difference in employment status if they perform substantially the same kind of work, require substantially the same skill and perform their work under similar working conditions. Exceptions include differences in pay based on a seniority system, a merit system, on a system that determines pay by quantity or quality of production, or other factors (not including sex or employment status).
Similarly, employers will be required to pay temporary help agency employees equally to permanent employees if those employees are performing substantially the same work, require substantially the same skill and the work is performed under similar working conditions.
These provisions will become effective as of April 1, 2018.

Pregnancy and Parental Leave

The total length of combined pregnancy and parental leave is extended from 52 weeks to 78 weeks and the length of parental leave for an employee that does not take pregnancy leave is extended from 37 weeks to 63 weeks. Amendments to Parental leave will become effective December 3, 2017.

Family Medical Leave

Under the current ESA, an employee is permitted to take a leave of absence without pay for up to 8 weeks to provide care or support to certain family members where the individual has a serious medical condition with a significant risk of death within a period of 26 weeks. Under Bill 148, employees will be able to take up to 28 weeks for individuals with a significant risk of death within a 26-week period.

Domestic or Sexual Violence Leave

Bill 148 introduces a new leave of absence to the ESA. Under this leave, an employee who has been employed for at least 13 consecutive weeks is entitled to a leave of absence where that employee or the employee’s child experiences domestic or sexual violence or the threat of it. The leave must be taken to seek medical attention for an injury, to obtain services from a victim services organization, obtain psychological or professional counselling, to relocate, to seek legal or law enforcement assistance or another prescribed purpose. An employee is entitled to take up to 10 days of leave a day at a time and up to 15 weeks of leave in one or more full weeks at a time under this section. The first five days of leave are to be paid.

Personal Emergency Leave

Under current legislation, Personal Emergency Leave (“PEL”) applies only in workplaces with 50 or more employees. Under Bill 148, this threshold will be eliminated so that all employers will need to provide two days of paid leave and eight days of unpaid leave in each calendar year. Employees that have been employed for less than one week will not be entitled to paid days of leave under this section.

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