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Ontario Overhauls Employment Standards Laws

Overview

On Nov. 22, 2017, the Government of Ontario passed Bill 148, the Fair Workplaces, Better Jobs Act, 2017 (Bill 148). Bill 148 makes significant amendments to Ontario’s Employment Standards Act, 2000 (ESA), Labour Relations Act, 1995 (LRA) and the Occupational Health and Safety Act (OHSA).

Among other changes, Bill 148 raises the minimum wage, mandates equal pay for part-time, temporary, casual and seasonal employees doing the same job as full-time employees, and expands job-protected leaves for employees throughout the province.

This Compliance Bulletin provides a summary of the major changes included in Bill 148.

Changes to the Employment Standards Act

The majority of Bill 148 focuses on changes to the ESA. Changes to the ESA will come into force throughout 2017, 2018 and 2019.

Employee Misclassification – Effective Immediately

Bill 148 prohibits employers from misclassifying employees as “independent contractors.” While this practice has been prohibited in the past, there is now an explicit ban on treating employees as independent contractors for the purposes of the ESA. This prohibition is intended to address cases where employers improperly treat their employees as if they are self-employed and not entitled to the protections of the ESA. In the event of a dispute over employee classification, the employer will be responsible for proving that the individual is not an employee.

Extended Parental Leave – Commencing Dec. 3, 2017

Formerly this leave was up to 35 weeks if the employee took pregnancy leave, and 37 weeks otherwise. Under the new legislation, this leave can be taken up to 61 weeks if the employee took pregnancy leave, and up to 63 weeks otherwise. This change comes as a result of new federal changes to employment insurance (EI). Employees are only entitled to this extended parental leave if the child is born or comes into their custody, care and control after Dec. 3, 2017.

New Critical Illness Leave – Commencing Dec. 3, 2017

Prior to Bill 148, employees could take up to 37 weeks to provide care or support to their critically ill child. Under the new changes, an employee is entitled to take up to 17 weeks of leave in a 52-week period to provide care or support to a critically ill adult family member and up to 37 weeks to provide care or support to a critically ill child who is a family member.

This additional leave corresponds with the new EI entitlement to Family Caregiver benefit for adults. To be eligible for critical illness leave, employees must be employed for at least six months. For the purposes of this leave, the definition of “family member” is quite broad and even includes people who consider the employee “to be like a family member.”

$14 and $15 Minimum Wage – Commencing Jan. 1, 2018, and Jan. 1, 2019

On Jan. 1, 2018, the general minimum wage in Ontario will rise to $14 per hour and then to $15 per hour on Jan. 1, 2019. After Jan. 1, 2019, the minimum wage will be subject to an annual inflation adjustment on Oct. 1 of each year. The table below demonstrates the expected increases to the minimum wage.

Affected Workers Current Wage Jan. 1, 2018 Wage Jan. 1, 2019 Wage
General Minimum Wage $11.60 $14.00 $15.00
Students $10.90 $13.15 $14.10
Liquor Servers $10.10 $12.20 $13.05
Homeworkers $12.80 $15.40 $16.50

Paid Personal Emergency Leave – Commencing Jan. 1, 2018

Starting Jan. 1, 2018, personal emergency leave (PEL) will become available to all employees, not just employees of employers who regularly employ 50 or more employees. Moreover, going forward, two days of PEL will be paid, provided that an employee has been employed by their employer for more than a week. The paid days will have to be taken before any unpaid days of PEL in a calendar year. Under Bill 148, employers retain the right to require evidence of entitlement to days of PEL, but they will not be allowed to require a certificate from a qualified health practitioner.

 Domestic or Sexual Violence Leave – Commencing Jan. 1, 2018

A new domestic and sexual violence leave has been established under Bill 148. For employees that have been employed for at least 13 consecutive weeks, the new legislation provides up to 10 individual days of leave and up to 15 weeks of protected leave when an employee or their child has experienced or is threatened with domestic or sexual violence. The first five days of leave each calendar year would be paid, the rest would be unpaid.

This leave of absence may be taken for one of the following purposes:

  • To seek medical attention in respect of a physical or psychological injury or disability caused by the domestic or sexual violence
  • To obtain services from a victim services organization
  • To obtain psychological or other professional counselling
  • To relocate temporarily or permanently
  • To seek legal or law enforcement assistance, including preparing for or participating in any civil or criminal legal proceeding related to or resulting from the domestic or sexual violence

The new legislation also requires employers to put mechanisms in place to protect the confidentiality of records they receive or produce in relation to an employee taking domestic or sexual violence leave.

Extended Pregnancy Leave – Commencing Jan. 1, 2018

Starting Jan. 1, 2018, pregnancy leave for employees who suffer a pregnancy loss will be extended from six weeks to 12 weeks after the pregnancy loss occurs. Employees will be able to satisfy their entitlement to this leave by providing a medical certificate from a physician, nurse practitioner or midwife.

Family Medical Leave – Commencing Jan. 1, 2018

The entitlement to family medical leave, which allows employees to provide care or support to a family member with a serious medical condition, will be increased from an eight-week leave in a 26-week period to a 28-week leave in a 52-week period.

Leave for the Death of a Child and for Crime-related Disappearance – Commencing Jan. 1, 2018

Bill 148 creates a new, separate leave for child death from any cause for a period of up to 104 weeks. The legislation amendments also establish a separate leave for crime-related child disappearance for a period of up to 104 weeks.

Vacation Entitlement – Commencing Jan. 1, 2018

Currently, the ESA vacation entitlement is set at two weeks per year for all employees. Now, employees with five or more years of service as of Jan. 1, 2018, will be entitled to three weeks of vacation time and 6 per cent vacation pay. What’s more, employers will be required to retain records related to vacation for a period of five years.

Public Holiday Pay – Commencing Jan. 1, 2018

Beginning Jan. 1, 2018, a new formula for calculating public holiday pay will be introduced. The new calculation will divide the wages earned in the pay period immediately preceding the public holiday by the number of days actually worked. The new legislation also requires employers to provide an employee with a written statement that sets out certain information when a day is substituted for a public holiday.

Overtime Pay – Commencing Jan. 1, 2018

Starting Jan. 1, 2018, employees who hold more than one position with an employer and who are working overtime must be paid at the rate for the position they are working at during the overtime period.

Equal Pay for Equal Work – Commencing April 1, 2018

Starting April 1, 2018, employers will be required to pay casual, part-time, temporary and seasonal employees at the same rate as full-time employees if those employees perform substantially the same kind of work, in the same establishment. This requirement will extend to temporary help agencies, such that workers of temporary help agencies must be paid at the same rate of pay as employees of the client company they are assigned to, provided they perform substantially the same kind of work.

Differences in pay between employees of different status will only be permitted where the difference in pay is made on the basis of seniority, merit, earnings by quantity or quality of production, or other factors, other than sex or employment status.

It should be noted that employees will also be able to request a review of their rate of pay if they believe that they are not receiving equal pay to full-time or permanent employees. The employer will then have to respond to the request with either an adjustment in pay or a written explanation. What’s more, employers will be expressly prohibited from committing reprisals against employees (or temporary help agency workers) who make such a request and must permit or discuss or disclose their rate of pay to other employees.

Scheduling – Commencing Jan. 1, 2019

Starting Jan. 1, 2019, new rules for scheduling will come into force. Under these rules:

  • Employees with three months’ service will be permitted to submit a written request to their employer for a change in work schedule or work location. If an employer denies the request, it must provide reasons for the denial.
  • The “three-hour rule” will change so that employees who regularly work more than three hours per day, but upon reporting to work are given less than three hours, must be paid for three hours of work.
  • Employees will have the right to refuse an employer’s request or demand to work on a day that the employee was not scheduled to work if the request or demand is made less than 96 hours before the time the employee would commence work. Employers are exempt from this provision if the employer’s request is to deal with an emergency, to remedy or reduce a threat to public safety, ensure delivery of essential public services or for other reasons prescribed by regulation.
  • Employers that cancel an employee’s scheduled day of work or on-call period with less than 48 hours’ notice will be required to pay the employee wages equal to the employee’s regular rate for three hours of work.
  • An employee who is “on call” and not called to work (or who is called into work and works for less than three hours) must be paid his or her wages for three hours of work.

Changes to Labour Relations Act

Bill 148 also brings about significant amendments to Ontario’s labour relations regime under the LRA. Bill 148’s amendments to the LRA will come into force on Jan. 1, 2018. Most notably, the following changes will come into force:

  • Card-based certification will be permitted in the building services, home care and community services, and temporary help agency industries.
  • Prior to seeking certification, unions with the support of at least 20 per cent of an organization’s employees will be entitled to access a complete list of the employees in the proposed bargaining unit, along with those employees’ phone numbers and personal emails.
  • Remedial certification will be mandatory where an employer interferes with the conduct of a certification vote.
  • The Ontario Labour Relations Board (OLRB) will be allowed to conduct votes outside the workplace, as well as electronically and by telephone.
  • The OLRB will have the power to consolidate a certified bargaining unit with an existing bargaining unit of employees of the employer represented by the same union.
  • Maximum fines for contravention of the LRA will increase to $5,000 for individuals and $100,000 for organizations.

Changes to Occupational Health and Safety Act

Bill 148 contains just one minor change to the OHSA, which was added to the bill at the last minute.

High-heeled Shoes – Effective Immediately

Bill 148 prevents employers from requiring workers to wear footwear with an elevated heel (i.e., high heels) at work, unless such footwear is required for the worker’s safety. Exceptions are allowed for workers in the “entertainment and advertising industry,” which includes the production of a live or broadcast performance or visual, audio or audio-visual recordings of performances.

Next Steps for Employers

To prepare for these changes, employers should immediately review and revise all handbooks, policies and practices that are affected by the new legislation. The full text of Bill 148 can be reviewed here. In addition, the Government of Ontario has published an overview of Bill 148 that employers can review here.

© Zywave, Inc. All rights reserved

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