Bill 148 – Amendments to the Employment Standards Act: Are You Ready?

On November 27, 2017, Bill 148, the Fair Workplaces, Better Jobs Act, 2017, received Royal Assent.

The Bill brings the most significant changes to the Employment Standards Act (the “ESA”) that we have
seen in approximately two decades.  Some of the changes come into effect as early as December 3, 2017, with the most significant amendments coming into effect between January 1, 2018 and January 1, 2019.

Below is an overview of some of the key changes to the ESA:

     Minimum Wage

Minimum wage will increase from the current $11.60/hour to $14/hour on January 1, 2018, and $15/hour on January 1, 2019 for most employees. Thereafter, it is subject to an annual inflation adjustment on October 1 of every year, starting in 2019.

     Vacation Time/ Pay

Effective January 1, 2018, employees whose period of employment is 5 years or more, will be entitled to 3 weeks’ vacation and 6% vacation pay.

     Public Holiday Pay

Effective January 1, 2018, the formula for calculating public holiday pay will be based on the number of days actually worked in the pay period immediately preceding the public holiday. Also, where an employee agrees to work on a public holiday and is entitled to a substitute holiday, employers must provide a “public holiday statement” and keep records of that information.

     Equal Pay for Equal Work

Effective April 1, 2018, part-time, casual, temporary and seasonal employees receive the same pay rate as comparable full-time employees when performing substantially the same job for the same employer, subject to some limited exceptions.

     Requests for Change to Schedule

Effective January 1, 2019, employees can request changes to their schedule or work location. Employers who receive these requests must discuss them with the employee and either grant them or provide reasons for a denial.

     Scheduling/On Call Provisions

Effective January 1, 2019, employer will be subject to several new scheduling provisions, including a requirement to pay a minimum of 3 hours’ pay for shifts that are under 3 hours, and 3 hours’ pay in the event of cancellation of scheduled day of work/on call period, with insufficient notice.

     Independent Contractors

As of the day Bill 148 receives Royal Assent, employers are prohibited from misclassifying employees as “independent contractors”. This is aimed at circumstances where employers improperly treat their employees as if they were self-employed, and not entitled to protections under the ESA.

     Pregnancy Leave

Effective January 1, 2018, the length of pregnancy leave for employees who suffer a stillbirth or miscarriage will increase from 6 weeks to 12 weeks after the loss occurs.

     Parental Leave

Effective on December 3, 2017, the length of parental leave will increase:

• From 35 weeks to 61 weeks for employees who took pregnancy leave; and

• From 37 to 63 weeks for employees who did not.

Employees will be entitled to commence parental leave no later than 78 weeks after the child is born/comes into their custody, care and control.

     Personal Emergency Leave

Effective January 1, 2018, all employees will be entitled to 10 days of personal emergency leave (previously, this leave only applied to an employer with 50 or more employees). In addition, 2 of these days are now required to be paid days, if the employee has been employed for one week or longer. Employers retain the right to require evidence of entitlement to these days, but cannot require a certificate from a qualified health practitioner.

     Domestic Violence Leave

Effective January 1, 2018, this new section provides for a leave of absence where an employee suffers domestic or sexual violence or the threat thereof, provided they have been employed by for at least 13 consecutive weeks. Employees are entitled to up to 10 days and up to 15 weeks of leave, the first 5 days being paid.

     Other Leaves (effective January 1, 2018)

The entitlement to family medical leave is increased from 8 weeks to up to 28 weeks. The new Child Death Leave establishes an entitlement of up to 104 weeks of unpaid leave if a child of the employee dies for any reason.  The new Crime-Related Child Disappearance Leave retains the entitlement to crime-related child disappearance leave but increases the entitlement from up to 52 weeks to up to 104 weeks.

Currently, an employee is entitled to a leave to provide care and support for their critically ill child. The new Critical Illness Leave will allow an employee to take a leave to provide care and support to any critically ill family member.

     Employer Record Keeping Requirements

Bill 148 will add new record-keeping requirements with respect to public holidays (as noted above), scheduling, on-call shifts, leaves, vacation time and vacation pay.

     Occupational Health and Safety Act (“OHSA”)

In addition to the above changes to the ESA, Bill 148 will also add a new section to the OHSA which provides that an employer shall not require a worker to wear high-heeled footwear, unless it is required to perform work safely.  An exception exists for employers of performers in the entertainment and advertising industry.

 

Angela Khoury is an employment lawyer and associate at Singh Lamarche LLP.  She has been closely following Bill 148 and the changes that it introduces to the ESA.  Angela can be reached at: angela@singhlamarche.com or at 647-799-0499.

Please note that this article provides general information and is not an exhaustive review of legislative changes. It should not be relied on as legal advice or opinion.