Labour and Employment Law Blog

[This legislation has now been amended or replaced. Please see our subsequent blog post here.]

Bill 148, The Fair Workplaces, Better Jobs Act, 2017 received Royal Assent on November 27, 2017. This legislation would include significant amendments to the Employment Standards Act, 2000 (the “ESA”), the Occupational Health and Safety Act and the Labour Relations Act.  The changes will affect all provincially-regulated employers in the Province of Ontario, both unionized and non-unionized.  A summary of the changes to the ESA is set out below.

Ontario Employment Standards Act, 2000

The amendments to the ESA reflect the government of Ontario’s intention to protect workers who are classified as other than full-time regular employees, for instance, temporary agency workers and contractors. Additionally, employees will enjoy greater rights such as increased minimum wage, two paid personal emergency leave days per year, and greater paid vacation entitlements.

Critical Illness Leave and Parental Leave changes were also made to align with federal changes to employment insurance.

The following changes to the ESA will come into force on January 1, 2018, unless otherwise noted below.

• Higher Minimum Wage

• Minimum wage will be increased to $14 per hour on January 1, 2018, then $15 on January 1, 2019, and will thereafter increase annually at the rate of inflation in the Consumer Price Index.
• Special minimum wage rates (for instance, for students under 18) will continue, but these rates will increase by the same percentage as the general minimum wage.

• Increase to Paid Vacation

• Instead of the current two weeks’ paid vacation for all years of services, paid vacation will be increased to three weeks’ paid vacation after five years’ continuous service.

• New Calculation for Paid Holidays

• The calculation of statutory holiday pay will change such that employees will receive their average regular daily wage.
• Where a public holiday falls on an employee’s day off, and the employee does not work on the holiday, the employer must provide the employee with a substitute day off immediately before or after the holiday.

• Increased Leaves

• Two Paid Personal Emergency Leave (“PEL”) Days
• The current 50-employee threshold will be eliminated such that all employers must provide their employees with ten Personal Emergency Leave days.
• Employers will be required to pay employees for the first two of ten PEL days they take, the remaining eight being unpaid.
• Employers will be prohibited from requiring a doctor's note from an employee taking a PEL day.
• Family Medical: Employees will be entitled to more family medical unpaid leave, increasing from 8 weeks in a 26-week period, to up to 27 weeks in a 52-week period, and the list of applicable family members has been expanded. (Coming into effect on December 3, 2017.)
• Death of Child: Employees will be entitled to a new unpaid leave of up to 104 weeks for the death of their child under any circumstances.
• Critically Ill Family Member: Currently, an employee may take unpaid leave to provide care and support to their critically ill child; under the amendments, an employee is entitled to take leave to provide care and support to any critically ill family member (as defined).
• Five Paid Violence Leave Days:
• Domestic or Sexual Violence: An employee who has been employed by an employer for at least 13 consecutive weeks is entitled to up to 10 days and up to 15 weeks of mostly unpaid leave if the employee or a child of the employee experiences domestic or sexual violence or the threat of domestic or sexual violence. The leave must be taken for any of the purposes listed in the section.
• The first five days of leave are to be paid.
• Pregnancy and Parental: Employees’ entitlement to six weeks unpaid pregnancy leave in certain circumstances is increased to 12 weeks. The entitlement to parental leave is increased from 35 weeks to 61 weeks for employees who take pregnancy leave, and from 37 weeks to 63 weeks otherwise. (Coming into effect on December 3, 2017.)

• New Scheduling Rules (January 1, 2019) (many of the new scheduling provisions can be overridden by an in-force collective agreement)
• Employees with at least three months’ service will have the right to request schedule or location changes without reprisal.
• Employees will have the right to refuse shifts (including on-call shifts) if less than four days’ notice of the shift is provided.
• Employees will be entitled to payment of at least three hours if, within 48 hours, their shift is shortened, cancelled, or they are on call and not called in.
• Employees who regularly work more than three hours per day, but upon reporting to work, work less than three hours, will be paid three hours at their regular rate of pay.

• Overtime Pay Rates
• Blended rates will no longer be allowed - employees holding more than one position with the employer will be paid at the rate for the position they are working during the overtime period.

• Equal Pay (April 1, 2018)

• The ESA will contain a general rule that no employee may be paid less than what is paid to full-time employees of the same employer who perform the same job.
• Employers must respond in writing to any casual, part-time, temporary, or seasonal employee who believes he or she is not receiving wages equal to full-time employees.
• Employers can rely on objective reasons for a wage difference such as: seniority system, merit system, and systems that determine pay by quantity or quality of production, as well as other factors.

• Equality for Temporary Agency Employees

• Temporary help agency employees are to be paid equally as compared to permanent employees when performing the same job. (April 1, 2018)
• Temporary help agency employees will be entitled to one week’s notice of termination of an assignment that was scheduled to last more than 3 months but has ended early. (January 1, 2018)

• Misclassification - Independent Contractors

• The proposed legislation would prohibit employers from treating a person who is an employee of the employer as if the person were not an employee. This would apply, for instance, in the case of an independent contractor who is truly an employee.
• Employers that misclassify their employees could be subject to penalties including prosecution, public disclosure of a conviction and monetary penalties.

• New Record Keeping Requirements:
• The new ESA will include many new record keeping requirements all of which we will not set out here; for instance, the retention period for records of vacation time and vacation pay will increase from three years to five years.

• Claims and Penalties

• Employees will no longer be required to contact their employer before filing claims under the ESA.
• The monetary penalties for non-compliant employers will increase to $350, $700, and $1500.
• The Director of Employment Standards will be allowed to publish (including online) the names of individuals who have been issued a penalty, a description of the contravention, the date of the contravention and the amount of the penalty.

Additionally, the amendments will enact changes to the Ontario Occupational Health and Safety Act preventing employers from requiring a worker to wear footwear with an elevated heel, for example, high heels, at work unless such footwear is required for the worker's safety.

This summary is not an exhaustive list of the amendments to the ESA made under Bill 148.