Employment & Labour

Employment practices review critical to ensure Bill 148 compliance

By AdvocateDaily.com Staff

The long debate over proposed changes to Ontario’s Employment Standards Act (ESA) ended in November when Bill 148 received royal assent, writes Toronto employment lawyer Doug MacLeod in The Lawyer’s Daily.

The changes, which will be phased in over the next year, include an increase in the minimum wage from $11.60 to $14 on Jan. 1, 2018 and to $15 on Jan. 1, 2019, explains MacLeod, principal of MacLeod Law Firm.

Ontario businesses will now need to update their employment practices and policies to ensure they comply with the changes outlined in Bill 148, he says.

This article identifies 10 practices and policies that should be reviewed.

Increased vacation pay
Some companies provide two weeks' paid vacation to all staff, MacLeod writes.

“If an employment contract states that an employee is entitled to two weeks' vacation each year, then effective Jan. 1, 2019, it violates the ESA if the person has five or more years’ service,” he says, noting that the contract should be amended.

New paid personal emergency leave
MacLeod says in the past, companies with less than 50 staff weren’t obligated to provide bereavement and sick leave, nor were employees entitled to receive paid time off under those circumstances.

“If an employer does not provide 10 personal emergency days to an employee and pay for the first two days of this leave then effective Jan. 1, 2018, the employer is violating the ESA,” he writes.

“An employee with one week service is eligible for these two paid days. An employer is now prohibited from asking an employee for a doctor’s note as a condition of receiving a paid personal emergency leave day.”

New pay for cancelled shifts
Effective Jan. 1, 2019, businesses that cancel an employee’s shift with less than 48 hours' notice and do not pay the worker a minimum of three hours' pay will be in violation of the ESA, MacLeod writes.

New on-call pay
“If an employee is scheduled to be on call and is not called into work and is not paid at least three hours' pay at the employee’s regular rate then effective Jan. 1, 2019, the employer is generally violating the ESA,” he says.

Pay for sending an employee home before end of shift
Currently, if workers are sent home early, most businesses pay them for three hours, writes MacLeod.

“If an employee who is regularly scheduled to work at least three hours is sent home early and is only paid three hours' pay at the minimum wage then effective Jan. 1, 2019, the employer is violating the ESA,” he says.

Increased pay for part-time employees
Under the new law, companies will have to pay part-time workers the same pay their full-time counterparts receive for doing the same job, MacLeod says.

“If an employer does not pay a part-time employee the same pay as a full-time employee for substantially the same work then effective April 1, 2018, the employer is violating the ESA unless an exemption applies,” he says. “A part-time employee may request a review of their pay if they believe this equal pay for equal work provision is not being met.”

Increased pay for temporary agency employees
Temporary workers, who often receive a lower hourly rate than regular employees will now receive the same hourly rate, MacLeod writes.

“If an employer does not pay a temp agency employee the same pay as an employee doing substantially the same work then effective April 1, 2018, the employer is violating the ESA unless an exemption applies,” he says, noting that a temp worker can request a review of their pay if they believe this provision is not being met.

Potentially increased public holiday pay
Currently, holiday pay is based on a worker’s average earnings over a four-week period, MacLeod explains, adding that effective Jan. 1, 2018, it will be calculated based on the employee’s average earnings during the pay period before the holiday, which will often mean higher holiday pay for part-time staff.

Limits on scheduling work
Under the new rules, businesses will need to provide more notice around shift scheduling changes, MacLeod explains.

“Effective Jan. 1, 2019, an employee will be able to refuse an employer’s request to work or to be on call if the request is made less than 96 hours prior to the commencement of the shift,” he says.

New and longer leaves of absence
Pregnant employees with 13 weeks of service are entitled to 18 months of pregnancy and parental leave as of Dec. 3, 2017, MacLeod writes.

“Effective Jan. 1, 2018, an employee with at least 13 consecutive weeks' service is entitled to take a new leave of absence of up to 17 weeks if the employee or their child experiences sexual or domestic violence; the first five days of this leave is paid,” he says.

As of Dec. 3, 2017, employees who have accrued six consecutive months of work are entitled to a 17-week unpaid leave to care for a critically ill family member, MacLeod says.

“Effective Jan. 1, 2018, the family medical leave will increase from eight to up to 28 weeks of leave and the definition of ‘qualified health practitioner’ has been expanded,” he says.

Together, the above-noted changes mean Ontario companies are facing a number of new obligations, including increased payroll costs, more time off for workers and tighter restrictions, MacLeod writes.

“I hope the Ministry of Labour will release and publicize a compliance guide for employers in relation to the changes that were just made to the Employment Standards Act,” he says. “But I’m not holding my breath. I expect employers — especially small employers — will continue to inadvertently neglect to comply with Ontario’s continually changing employment laws.”

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