Accounting for Law
Employment & Labour

Low helps employers sort out confusion around Bill 47

Bill 47 — Making Ontario Open for Business Act, 2018 — is set to take effect Jan. 1, 2019, and Toronto employment lawyer Ellen Low says there are many moving pieces in the legislation that can trip up employers.

“There are quite a few changes at this particular moment in time, so everyone is a little unclear about what the state of the law is,” she tells AdvocateDaily.com.

Bill 47 amends part of the Employment Standards Act, (ESA) and reverses some proposed changes of the Liberal government’s Bill 148, says Low, principal of Ellen Low Employment Law.

“Employers were getting their heads around the changes under Bill 148, and now we have Bill 47, which keeps some employee entitlements and takes away others,” she says.

As an example, Low says Bill 47 doesn’t change an employer’s obligations around parental leave or child disappearance leave.

“Those all stay in full force and effect,” she says.

But one part that is changing, Low says, is personal emergency leave and that is the area she’s had the most queries about.

She says prior to Bill 47, employees were entitled to 10 personal emergency leave days and two of them were paid. The two paid days have now been repealed and replaced by three separate unpaid entitlements, Low says:

1) Entitlement to sick leave (three days)

2) Entitlement to family responsibility leave (three days)

3) Entitlement to bereavement leave (two days)

She says “employers have been asking, ‘What do we do now? We amended all our policies last year to account for these 10 personal emergency leave days and rolled out all these new policies in response to Bill 148.’”

Low tells her clients that they can leave the amendments they made last year if they prefer.

“Under a contract, you can always provide a greater right or benefit than required under the ESA,” she says. “Some employers are content to leave contracts as is while others are keen to move into these three separate and distinct categories that can’t be interchanged.”

Low says it’s important for employees to recognize that they cannot get both.

“You’re not entitled to a leave in your contract and then on top of it, the unpaid days that are in the ESA,” she says.  

Another area that Low says has been confusing for people concerning Bill 47 is vacation time.

“The new bill hasn’t made any changes to the increase in vacation time after five years of employment that came in under Bill 148,” Low explains.

“That means after five years of continuous employment, an employee is entitled to three weeks of vacation with vacation pay at a rate of six per cent,” she notes. “This remains the same, but people are still asking questions because they are unsure.”

Adding even more confusion, Low says, is that earlier this month, the province introduced Bill 66, Restoring Ontario's Competitiveness Act, 2018.

“One amendment in Bill 66 to the ESA is to eliminate the need for the Director of Employment Standards to approve employees working more than 48 hours in a week or overtime averaging agreements,” she says.

“This bill will affect many more workers because a significant number of employers have employees who work overtime.”

With all these changes, Low says it’s going to take a while for the dust to settle and for people to understand the current state of employment law.

“If you’re unsure of any part of the legislation, make sure you get legal advice,” she says.

“I have recommended to my clients that we meet in early 2019 to do a comprehensive review of the employment agreement as well as their policies and handbooks to see what needs to be updated,” Low says.

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