On November 27, 2017, Bill 148, the Fair Workplaces, Better Jobs Act, 2017 received Royal Assent and came into force in Ontario. Bill 148 contains a number of significant changes to various workplace related legislation in Ontario including the Employment Standards Act, 2000 (“ESA”) and Occupational Health and Safety Act (“OHSA”). These changes are scheduled to come into force on various dates between November 27, 2017 and January 1, 2019.
Employee/Independent Contractor Classification (In force November 27, 2017)
Bill 148 amends the ESA to prohibit the misclassification of employees. The employer now has the onus to prove that an individual is an independent contractor and not an employee. Employers should ensure that they conduct appropriate due diligence when engaging contractors to ensure they can meet this new onus.
Minimum Wage Hike (In force January 1, 2018 and January 1, 2019)
On January 1, 2018, the minimum wage for most employees will be raised to $14.00 per hour. A further increase to $15.00 will also take effect on January 1, 2019. There remain certain exceptions to these minimum wage rates, including students under 18 if their weekly working hours do not exceed 28 hours or if they are employed during a school holiday, and employees who serve liquor directly to customers in a licenced establishment and who regularly receive tips or other gratuities from their work.
Changes to Schedule or Work Location (In force January 1, 2019)
An employee who has been employed for at least 3 months will be allowed to submit a written request to their employer requesting changes to their schedule or work location. The employer must discuss the request with the employee and notify them of the employer’s decision within a reasonable time.
If the employer grants all or any part of the request, the employer must specify the date the changes will take effect and their duration. If the request is denied, the employer must provide reasons for the denial.
Scheduling (In force January 1, 2019)
Bill 148 creates a new Part VII.2 to the ESA, which establishes rules regulating scheduling and on-call assignments.
Three Hour Rule
An employer will be required to pay an employee wages equal to the employee’s regular rate for three hours’ work if the employee:
- regularly works more than 3 hours per day;
- is required to work; and
- works less than 3 hours despite being available to work longer.
This payment is defined as the greater of 1) 3 hours of pay at the employee’s regular rate or 2) the sum of (a) the amount that the employee earned while working, plus (b) the remaining time calculated at the employee’s regular rate. If the employee is entitled to some form of premium pay while working, they would remain entitled to that premium.
Minimum On-Call Pay
An employee will be entitled to minimum on-call pay when placed on call but is either not called into work or is required to work for less than 3 hours despite being available to work longer. This minimum payment is calculated using the same formula as the Three Hour Rule.
However, this minimum payment does not apply if the employee was on call for the purposes of ensuring the continued delivery of essential public services (regardless of who delivers those services) and the employee on call was not required to work.
Right to Refuse Work
An employee will generally be able to refuse work or an on-call assignment if at least 96 hours’ notice of the start of the shift is not provided. Employees must notify their employer as soon as possible of this refusal.
There are a number of exceptions to the right to refuse, such as to deal with an emergency, remedy or reduce a threat to public safety, ensure the continued delivery of essential public services (regardless of who delivers those services) or for other prescribed reasons.
Vacation and Public Holidays (In force January 1, 2018)
An employee who has been employed for 5 years or more will be entitled to 3 weeks of paid vacation. For employees who receive vacation pay, it will increase to 6% for an employee who has been employed for 5 years or more. Where an employee works on a public holiday, they are to be paid holiday pay plus premium pay for the hours worked.
Equal Pay for Equal Work (In force April 1, 2018)
Bill 148 prohibits differential pay based on a difference in “employment status”. It implements a general rule that no employee may be paid less than what is paid to a full-time employee for the same work.
Leaves of Absence
Bill 148 introduces changes to leave entitlement and creates new categories of leave.
Parental Leave (In force December 3, 2017)
The length of parental leave is increased by 26 weeks to 61 weeks for employees who took a pregnancy leave and to 63 weeks for employees who did not.
Critical Illness Leave (In force December 3, 2017)
Critical illness leave is available only to employees who have been employed for at least 6 consecutive months and is comprised of two basic entitlements:
- a leave of up to 37 weeks in a 52-week period for an employee to provide care or supports to a critically ill minor child who is a family member of the employee; and
- a leave of up to 17 weeks in a 52-week period for an employee to provide care or support to a critically ill adult who is a family member of the employee.
“Family member” is defined broadly and encompasses spouses, parents, grandparents, siblings, aunts/uncles and can extend to “step” relatives.
Employees must inform their employer in writing as soon as possible of their intention to take critical illness leave and must provide the employer with a written plan indicating the time in which the employee will take the leave. Upon request by the employer, employees must provide the employer with a copy of the certificate from a qualified health practitioner stating that the family member is critically ill and requires the care or support of one or more family members and the period during which they require the care or support.
Pregnancy Leave (In force January 1, 2018)
The length of pregnancy leave for employees who suffer a still-birth or miscarriage is extended to 12 weeks after the pregnancy loss occurs.
Family Medical Leave (In force January 1, 2018)
The length of family medical leave is extended 27 weeks in a 52-week period for the provision of care or support to a family member who has a serious medical condition with a significant risk of death within 26 weeks.
Crime-Related Child Disappearance Leave and Child Death Leave (In force January 1, 2018)
Bill 148 creates two types of leave for employees who have been employed for at least 6 months:
- 104 weeks if the employee’s child disappears and it is probable that the disappearance was the result of a crime; and
- 104 weeks following the death of the employee’s child, regardless of whether the death was crime related.
Personal Emergency Leave (In force January 1, 2018)
Personal emergency leave is now available in all workplaces regardless of the number of employees. Employees are entitled to 10 days leave and 2 of those days must be paid days. An employee who takes personal emergency leave is not required to provide a medical note to substantiate their claim for leave.
Domestic of Sexual Violence Leave (In force January 1, 2018)
An employee who has been employed for at least 13 consecutive weeks is now entitled to a leave of absence where the employee or the employee’s child experiences domestic or sexual violence or the threat of such violence and the leave is taken for one of the delineated purposes. In each calendar year, an employee may take up to 10 days of leave and up to 15 weeks of leave as well, with the first 5 days being paid days.
Elevated Heels (In force November 27, 2017)
Under the OHSA, employers are now prohibited from requiring that employees wear elevated heels unless an elevated heel is required for the employee to perform their work safely. This section does not apply to performers in the entertainment and advertising industry.
Record Keeping for Employers (In force January 1, 2018)
In addition to existing record keeping requirements which have been retained, Bill 148 imposes several new requirements including the dates and times an employee worked or was scheduled to work or be on-call, cancellations of scheduled work of on-call periods, overtime and vacation pay entitlements, and documents related to the new Domestic or Sexual Violence Leave.
Enforcement (In force January 1, 2018)
An employee no longer has to demonstrate that they attempted to resolve their issue with the employer before proceeding with a complaint under the ESA. Penalties for violations of the ESA are increased and the Director of Employment Standards can now publish the names of penalized individuals along with a description of the circumstances and the amount of the fine. Employment Standards Officers are now also able to award interest on unpaid wages.
This Blog is provided as an information service by Rasmussen Starr Ruddy LLP. It is distributed with the understanding that it does not constitute legal advice or establish a solicitor-client relationship by way of any information contained herein. The contents are intended for general information purposes only and under no circumstances can be relied upon for legal decision-making. Please consult with us and obtain a written opinion concerning the specifics of your particular situation.