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Further to our previous report on the Ontario government’s plans to repeal the Fair Workplaces, Better Jobs Act, 2017 (Bill 148), the Making Ontario Open for Business Act, 2018 (Bill 47) received royal assent on November 21, 2018.

Bill 47 repeals or amends many of the employer obligations added to the Employment Standards Act, 2000 (ESA) by the previous provincial government under Bill 148. These changes to the ESA come into effect on January 1, 2019.

Summary of Amendments to the ESA – Effective January 1, 2019

Subject Current entitlements under the ESA New entitlements as per Bill 47
(coming into force January 1, 2019)
Minimum Wage Scheduled increase in the minimum wage to $15 per hour on January 1, 2019 Minimum wage is frozen at $14 until October 1, 2020.

 

Minimum wage will be subject to annual increases tied to inflation starting October 1, 2020.

 

Scheduling Starting January 1, 2019, employees could request changes in their work schedule or location. Employers would have to provide reasons for a denial.

 

Starting January 1, 2019, employees would be entitled to 3 hours’ pay if their shift is cancelled within 48 hours before it begins.

Starting January 1, 2019, employees would have a right to refuse a change in schedule or on-call shift if the request is made fewer than 96 hours before the shift was scheduled to start.

Starting January 1, 2019, employees would be entitled to 3 hours’ pay if they are on-call and not required to work, or if they work fewer than 3 hours.

Employers would be required to keep records of dates and times employees were scheduled to work or be on-call and any cancellations.

All of the changes in respect of scheduling are repealed, with the following exception:

 

Employees who regularly work more than 3 hours a day and are required to present themselves for work, but who work fewer than 3 hours, will be entitled to a minimum of 3 hours’ pay unless the shift is shortened because of events beyond the employer’s control (e.g. fire, power failure).

Personal Emergency Leave 10 days of leave due to personal illness, injury, or medical emergency for employees and/or certain family members.

 

 

 

 

 

The first 2 days are paid.

 

 

 

 

 

 

 

Employer is prohibited from requiring a doctor’s note to substantiate these absences.

3 days of sick leave for personal illness, injury, or medical emergency

3 days of family responsibility leave for illness, injury, medical emergency, or urgent matters relating to a parent, grandparent, child, spouse, sibling, or dependent relative of the employee

2 days of bereavement leave for the death of a parent, grandparent, child, spouse, sibling or dependent relative

 

All days of leave are unpaid.

 

Eligibility for these leaves begins after 2 consecutive weeks of employment with the employer.

 

These leave days are deemed to be taken as entire days, regardless of whether or not the employee is off work for the entire day

 

Employer can request evidence reasonable in the circumstances, including a doctor’s note.

Other Leaves Two new categories of leave:

  • Domestic and sexual violence leave (up to 10 individual days and up to 15 weeks, with the first 5 days paid); and
  • Death of a child or crime-related disappearance leave (up to 104 weeks)

 

Increased entitlements for:

  • Parental leave (61 weeks if the employee took a pregnancy leave and 63 weeks if the employee did not take a pregnancy leave)
  • Family medical leave (28 weeks in a 52-week period)
  • Critical illness care leave (37 weeks in a 52-week period for a child, 17 weeks in a 52 week period for an adult)

 

New leaves and increased entitlements are maintained.

 

 

If an employee takes a paid or unpaid leave other than a statutory leave in circumstances for which the employee would also be entitled to take sick leave, family responsibility leave, or bereavement leave, then the employee is deemed to have taken the statutory leave.

Public Holiday Pay Public holiday pay is calculated as all regular wages earned by the employee in the pay period immediately preceding the public holiday, divided by the number of days the employee worked in that pay period. Public holiday pay is calculated as the total amount of regular wages earned and vacation pay payable to the employee in the four work weeks before the work week in which the public holiday occurred, divided by 20.

 

Vacation Time/Pay 3 weeks’ vacation time/pay for employees with 5 or more years of service

2 weeks’ vacation time/pay for employees with less than 5 years of service

The entitlements to vacation time and pay are maintained.
Misclassification of Employees If an employee’s status is in question, employers face a reverse onus to prove that a worker is not an employee. The reverse onus provision is repealed.

Employers are still obliged to classify workers correctly.

 

Equal Pay for Equal Work  

Equal pay for equal work, on the basis of sex, for those who perform substantially the same jobs for the same employer

 

Equal pay for equal work on the basis of employment status (part-time, full-time, seasonal, casual) and for employees referred by temporary help agencies.

Equal pay for equal work, on the basis of sex, is maintained for those who perform substantially the same jobs for the same employer.

 

Equal pay for equal work on the basis of employment status and for employees referred by temporary help agencies is repealed.

Penalties for Contravention Maximum penalties for administrative contraventions are $350/$700/$1500. Maximum penalties for administrative contraventions are reduced to $250/$500/$1000.

 

Wage Review Employees can request a review of their wages and the employer must respond with a pay adjustment or with written reasons for why the request is denied.

 

The wage review provisions are repealed.
Scope of the Act The ESA currently exempts an individual who performs work in a simulated job or working environment (if the primary purpose in placing the individual in the job or environment is his/her rehabilitation) This exemption is repealed. Those who perform work in a simulated job or working environment (if the primary purpose in placing the individual in the job or environment is his/her rehabilitation) are covered by the ESA

 

If you have any questions about Bill 47 and its potential impact on the workplace, please contact Alexandra Hobson by telephone at 416-214-5111 or by email at ahobson@sultanlawyers.com.


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