Ontario Employment Standards Act Update: 2019

Ontario employment law has been in upheaval over the past two years and it is hard to keep track of the current state of the law and employer compliance!

In June 1, 2017 the Government of Ontario unveiled the Fair Workplaces, Better Jobs Act, 2017 (Bill 148), which introduced wide-sweeping changes to Ontario’s Employment Standards Act (“ESA”). One year after Bill 148 was passed, a newly elected Ontario government introduced Bill 47, Making Ontario Open for Business Act 2018, which revokes and modifies many of the prior changes, some of which were still pending coming into force.

On November 21, 2018, Bill 47 passed Third Reading and received Royal Assent. The Bill 47 amendments to the Employment Standards Act, 2000 came into force on Jan 1, 2019. The amendments that have been repealed include:

Minimum Wage

  • Bill 47 keeps the minimum wage at $14 (the previous minimum wage increases are not rolled back.)

  • The slated hike of the general minimum wage from $14/hour to $15/hour effective January 1, 2019 has been cancelled.

  • A 33-month pause in minimum wage increases, tied to inflation, will restart in October 2020.

Scheduling

Several scheduling provisions that were slated to come into force on January 1, 2019 under Bill 148, have now been repealed:

  • The right to request changes to schedule or work location after an employee has been employed for at least three months;

  • Minimum of three 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;

  • Right to refuse requests or demands 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;

  • Three 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; and

  • The record-keeping requirements that relate to the above-noted scheduling provisions.

Three Hour Rule

Bill 47 modifies and moves the existing three-hour rule to a new section of the ESA. Where an employee who regularly works more than three hours a day is required to report to work, but works less than three hours, the employee would be paid for three hours.

Leave

  • Bill 47 repeals the previous governments personal emergency leave (“PEL”) entitlements with a package of annual leave days for workers employed for at least 2 consecutive weeks, comprised of up to 3 days of personal illness, 2 days for bereavement and 3 days for family responsibilities.

  • Unlike Bill 148, all PEL days are without pay under Bill 47.

  • Bill 47 preserves the right of every worker in Ontario to receive three weeks of paid vacation after five years of employment.

  • Bill 47 protects current paid leave provisions for cases of domestic and sexual violence affecting an employee or an employee's child.

  • Bill 47 repeals the provision that prohibits employers from requiring an employee to provide a medical note from a qualified health practitioner. Employers now have the right to require evidence of entitlement to the leave that is reasonable in the circumstances (e.g., a note from a qualified health practitioner).

Public Holiday Pay

Repeals the averaging public holiday pay formula prescribed by Bill 148 and returns to the previous prorating public holiday pay formula and the prorating public holiday pay formula has been re-adopted.

Public holiday pay is now calculated as the total amount of regular wages earned and vacation pay payable to the employee in the four work weeks before the work week in which the public holiday occurred, divided by 20.

Misclassification

The requirement for the employer to prove that an individual is not an employee ("reverse onus") where there is a dispute over whether the individual is an employee has been repealed.

An individual asserting a claim under the ESA now has the onus of establishing they are an “employee,” where there is a dispute over classification.

Equal Pay for Equal Work

Equal pay for equal work on the basis of employment status (part-time, casual, and temporary) and assignment employee status (temporary help agency status) has been repealed.

Under Bill 148, employers were required to pay part time, causal, temporary and assignment employees at the same rate as a full-time employee conducting the same work, this is no longer required under Bill 47.

Penalties for Contravention

The government has returned to the previous administrative penalties for contraventions of the ESA by decreasing the maximum penalties from $350/$700/$1500 to $250/$500/$1000, respectively.

The following changes to the ESA that were introduced under Bill 148 are NOT repealed by Bill 47:

  • Previous minimum wage increases.

  • The 3-hour rule, insofar as employers are required to pay employees for 3 hours of work, where an employee who regularly works more than 3 hours a day is required to report to work, but works less than 3 hours.

  • 3 weeks of paid vacation after 5 years of employment.

  • Leave entitlements in the case of domestic or sexual violence.

  • The government has not expressed any intention to repeal the related employer provision introduced under Bill 148. As such, separate legal entities will continue to be treated as one employer if “associated or related activities or businesses” are carried on through multiple entities.

  • The equal pay for equal work requirement on the basis of sex also remains intact (however, this requirement pre-dated Bill 148).

With thanks to Daniella Guzzi - legal student intern!