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Employment & Labour

Employers faced with ever-changing labour laws: MacLeod

Businesses need to check their employment contracts and employee handbooks to keep up with ever-changing rules around paid and unpaid leaves, Toronto employment lawyer Doug MacLeod tells AdvocateDaily.com.

Bill 47, the Making Ontario Open for Business Act, which came into force at the turn of the year, was one of the first legislative actions taken by Premier Doug Ford’s new provincial government. It rolled back large chunks of previous Employment Standards Act (ESA) reforms contained in Bill 148, the Fair Workplaces, Better Jobs Act, 2017, created by his predecessor former premier Kathleen Wynne.

Among its changes, Bill 47 replaced the 10 personal emergency leave days provided for under Bill 148 with eight unpaid leave days. They were split between three days allocated for sick leave, three more for family responsibility leave, and two days for bereavement leave.

“This is one reason why employers should regularly review their employment contracts and handbooks,” says MacLeod, principal of MacLeod Law Firm. “If they refer to personal emergency leave, it’s going to have to be removed, because that doesn’t exist anymore.”   

For small companies without a dedicated human resources department, he says it’s better to have an employment lawyer regularly look at all their internal materials, as opposed to having the issue flagged by a potential employee and dealing with problems on a more reactive basis. 

Still, MacLeod says he has sympathy for business owners who can’t be expected to keep up with labour law developments on their own.

“There used to be a lot of stability in Ontario’s employment laws. There might have been some tinkering around the edges, but it was otherwise pretty stable for both employers and employees,” MacLeod explains, noting that the turning point came about 30 years ago, just before former premier Bob Rae’s NDP government assumed power.

The Pay Equity Act, which MacLeod calls "probably Ontario's most controversial employment law," was legislation that Rae's NDP demanded to prop up David Peterson's Liberal minority government as part of the Liberal/NDP Accord.  Rae’s "social contract” came next.

“Then Mike Harris's Tory government went hard right before the Liberals came back to power, and Wynne eventually went way left,” he says.

Finally, Ford's Tory government undid many of Wynne’s major reforms without even campaigning on the issue, MacLeod adds.

“It’s gone back and forth like a yo-yo, which makes it really difficult for employers to keep up,” he says. “Personal emergency leave and the confusion around it is just one example of that.”

Bill 148 extended the existing right to personal emergency leave days to all employees, rather than just those working for larger companies, and mandated for the first time that the first two of the 10 days that were allowed should be paid.

“Frankly, many medium- and larger-sized employers have more than two days of paid leave anyway. But for smaller employers, many of them didn’t pay because they couldn't afford it,” says MacLeod, who notes that the newly constituted eight unpaid leave days mandated by Bill 47 have created a dilemma for employers who chose to reflect the old version in their contracts and handbooks.

“Contracts can be amended or stay the same,” he says. “But, if they leave them the same, the company will be giving employees more paid leave days than they are entitled to under the new legislation. If the contracts are changed, it creates a situation where employees sitting side by side will have different rights, which is awkward.

“Overall, it’s very aggravating to almost all employers,” MacLeod says.

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