The May long weekend is before us. The weather is great, the
LCBO averted a labour disruption, and I suspect that traffic
may be worse than usual getting out of the city. In honour of the
long weekend, I have set out below the top 5 questions I am asked
about public holidays under the Employment Standards Act
1. Do we have to provide our staff with the civic holiday
(first Monday in August)?
Although many employers provide their staff with the civic
holiday, it is not required under the ESA. The required public
holidays under the ESA are: New Year's Day, Family Day, Good
Friday, Victoria Day, Canada Day, Labour Day, Thanksgiving Day,
Christmas Day, Boxing Day.
2. When staff are off on the public holiday, we just pay them a
day's pay, right?
Not necessarily. Employees are entitled to "public holiday
pay", which is calculated by taking intoaccount the last 4
weeks' wages (plus any vacation pay) and dividing that figure
by 20. This calculation may be less than a day's pay
(e.g., if the employee did not earn wages – maybe because of
anunpaid leave – during the previous 4 weeks).
3. We provide our staff with two "floating holidays"
(i.e., to be taken at the employee's discretion) instead of
Victoria Day. Is this permissible?
Generally speaking, yes it is. If an employer is providing more
paid holidays (under the same conditions) than the ESA requires,
this will generally be considered as a "greater right or
benefit" than the statutory minimum and therefore
4. Can we just pay our staff "time-and-a-half" for
working on a public holiday?
If the employee agrees to work during the public holiday, the
employee can receive regular pay for the holiday worked plus a
substitute holiday with "publicholidays pay".
Alternatively, if the employee agrees, he/she can work the public
holiday and receive "public holiday pay" PLUS
"premium pay" (1.5 times an employee's
wages).Assuming the employee worked his/her regular schedule during
the last 4 weeks, the "public holiday pay" will generally
equal a day's pay. Therefore, adding the "premium
pay" can result in a total of 2.5 times the employee's pay
for the public holiday worked.
5. An employee has a history of calling in sick on the Friday
before the holiday Monday. Is there anything we can do?
The employer can consider enforcing the "before and
after" rule. Under the ESA, employees must generally work the
shift before the public holiday and the shift after the public
holiday to be entitled to the public holiday provisions of the ESA
unless the employee can show reasonable cause for missing the
shift. To the extent that the absence was not allowed by the
employer (e.g., the employee does not have proper medical
documentation for the absence) the employer can consider not paying
the employee for the public holiday, as well as disciplining the
Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
A former teacher at Bodwell High School has learned a valuable lesson from the B.C. Human Rights Tribunal— it is not discriminatory for an employer to offer child-related benefits to only employees with children.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
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