Changes to the Ontario Employment Standards Act

In the world of employment law, the times they are a changin’. Once again, the Ontario government has announced major changes to the Employment Standards Act, 2000 (the “ESA”), this time cutting back on many of the reforms that were made by the previous government. The ESA creates the minimum labour standards for most employees in Ontario, and sets out the rights and responsibilities of employees and employers in most workplaces.

With this most recent announcement, here is a summary of what the ESA is expected to look like:

Minimum Wage

The general minimum wage will remain $14 per hour, with annual increases to the minimum wage tied to inflation beginning in 2020.

Vacation Pay

Employees with 5 or more years of service will be entitled to receive a minimum of 3 weeks of paid vacation. All other employees with less than 5 years’ service will be entitled to 2 weeks of paid vacation.

Public Holiday

Public holiday pay will be calculated by adding the employee’s regular wages over the last four (4) weeks before the holiday, and dividing by 20.

Equal Pay for Equal Work

Employers will not be allowed to pay employees performing the same job differently based on their sex. However, wage differences will still be allowed if based on seniority, merit, or the quantity/quality of an employee’s production.
Unlike with the previous changes, employers will not be prohibited from paying employees differently based on their employment status (part-time, casual, seasonal and temporary employees) and assignment employee status (temporary help agency).

Leaves of Absence

Personal Emergency Leave of up to:

3 unpaid days for personal illness;
2 unpaid days for bereavement; and
3 unpaid days for family responsibilities.

Also, employers will be allowed to request a doctor’s sick note for this leave

Domestic and Sexual Violence Leave of up to 10 days and 15 weeks if the employee or a child of the employee experiences or is threatened with domestic or sexual violence. The first 5 days of this leave are to be paid.

It should be noted that the government’s recent announcement did not clarify whether the changes to the following leaves of absences changes will remain:

Family Medical Leave extended up to 28 weeks in a 52-week period to provide care and support to a critically ill family member.
Parental Leave extended up to 61 weeks for employees who take pregnancy leave, and up to 63 weeks otherwise.
Critical Illness Leave of up to 17 weeks to care for adult family members
Leave for Child Death or Crime-Related Disappearance of up to 104 weeks.

Penalties for Violations of the ESA

The penalties for employers who violate the ESA, such as for improperly characterizing employees as “independent contractors,” will be reduced to their previous amounts: $250/$500/$1000 (from $350/$700/$1500).
In the event of a dispute, the employer will no longer be required to prove the individual is not an employee (reverse onus).

Overtime Pay

The government’s recent announcement did not clarify whether the previous changes to overtime pay requirements will remain. Currently, an employee who works two different types of jobs for the same employer and is paid different hourly rates for each one, must be paid overtime pay (time-and-a-half) for each hour of overtime worked, calculated based on the hourly rate that applies to the specific work performed.

Work Schedules

If an employee who regularly works more than 3 hours per day is required to report to work, but is given less than 3 hours, the employer must pay the employee 3 hours of work.

It is important to note that the following changes to the work scheduling rules that were to take effect in January 2019 will no longer apply:

The right to request changes to their work schedule or location after having been employed for 3 months.
Minimum of 3 hours’ pay for being on-call if the employee is available to work but is not called in to work, or works less than three hours.
The right to refuse to work or to be on-call on a day that an employee is not scheduled to work or to be on-call with less than 96 hours’ notice.
3 hours’ pay in the event of cancellation of a scheduled shift or an on-call shift within 48 hours before the shift was to begin.

If you are an Employer looking to understand your obligations under the Employment Standards Act, or you are an Employee interested in learning more about your basic rights, call us today to schedule a consultation.

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