Ontario Employment Standards Act – Who is Exempted from Basic Employee Protections?

The Ontario Employment Standards  Act, 2000 (“ESA“) provides basic important legal protections for  employees across the province that employers must respect. Some of these most important basic protections include:

• minimum wage
• payment of wages
• tips and gratuities
• vacation time and vacation pay
• notice of termination or termination pay
• severance pay
• overtime pay
• limits on working hours
• public holidays and public holiday pay
  
• record-keeping requirements
• sick days
• leaves of absence (e.g., family medical leave, family responsibility leave, pregnancy  leave and parental leave, etc.)
• protection against reprisal (or unlawful retaliation)

As important as these basic minimum employee protections are, they do not cover every single employee in Ontario.

Who is Not Covered (Exempted) from Minimum Protections of the ESA

Most employees and employers in Ontario are covered by the ESA, as long as:

1.  the employee’s work is to be performed in Ontario; or
2. the employee’s work is to be performed in Ontario and outside Ontario but the work performed outside Ontario is a continuation of work performed in Ontario.

However, the ESA does not apply to some people and the people or businesses they work for, including:

• employees and employers in industries that fall under federal employment law jurisdiction, such as airlines, banks, federal civil service, Canada Post, radio and television stations and inter-provincial trucking and inter-provincial railways
• employees who have not completed their initial 3-month probation period (if they signed an employment contract requiring it)
• post-secondary students working in co-operative or work experience programs approved by their college or university
• A member of a quasi-judicial tribunal (e.g., an adjudicator on the Ontario Human Rights Tribunal)
• people who do community participation under the Ontario Works Act, 1997 (social assistance recipients)
• police officers
• inmates taking part in work or rehabilitation programs
• young offenders who perform work as part of a sentence or court order
• politicians, judges, religious officials or elected trade union officials
•  “prescribed individuals” (see below)

Prescribed Individuals

The Ministry of Labour provides a special guide to help employees and employers understand whether their industry or job is covered by special rules and exemptions that change how some parts of the ESA apply: