Canada: Sweeping Changes To Ontario Workplace Law: Fair Workplaces, Better Jobs Act, 2017 (Bill 148) Passed By Legislature

On November 22, 2017, the Ontario Fair Workplaces, Better Jobs Act, 2017 (Bill 148), which we previously discussed, passed third reading, amending the Employment Standards Act, 2000 ("ESA"), the Labour Relations Act ("LRA") and the Occupational Health and Safety Act ("OHSA"). The bill received royal assent on November 27, 2017. 

As a result of Bill 148, wide-ranging and significant changes are set to take effect in Ontario workplaces, albeit on a staggered basis, with amendments coming into force almost immediately and then on January 1, 2018, April 1, 2018 and January 1, 2019.

This blog post highlights key ESA changes, ordered chronologically by effective date. We have also provided an outline of employer action items. Our comments regarding the amendments to the LRA will follow shortly on this blog.

Timeline for Change

Effective November 27, 2017

  • New Employee Misclassification Offence. Bill 148 explicitly bans employers from treating their employees as if they are not employees. The employer will bear the burden of proof in showing that an individual who is the subject of employment standards investigation or inspection is not an employee. This provision is specifically aimed at curtailing the widespread misclassification of employees as independent contractors.

Effective December 3, 2017

  • New Critical Illness Leave Replaces Critically Ill Child Care Leave. An employee who has been employed by his or her employer for at least 6 consecutive months is now entitled to take leave to provide care and support to any critically ill family member. In the case of a critically ill minor child, an employee is entitled to up to 37 weeks of leave and in the case of a critically ill adult, an employee is entitled to up to 17 weeks of leave.
  • Parental Leave. The entitlement to parental leave is increased from 35 weeks to 61 weeks for employees who take pregnancy leave and from 37 weeks to 63 weeks otherwise. The new provisions will only apply where a parental leave begins on January 1, 2018 or later. These changes are intended to parallel recent amendments to the Employment Insurance Act which will allow for an extended period of parental leave benefits, effective December 3, 2017.

Effective January 1, 2018

  • General Minimum Wage Increase. Ontario's general minimum wage will increase to $14/hour (with a further increase on January 1, 2019, see details below).
  • Three Weeks of Vacation. Employers must provide at least 3 weeks of vacation and 6% vacation pay to employees who have 5 or more years of service. Employees with less than 5 years of service will be entitled to 2 weeks of vacation and 4% vacation pay (as all employees were entitled to previously).
  • Public Holiday Pay.  Public holiday pay will be calculated based on the number of days actually worked in the pay period immediately preceding the public holiday.
  • Personal Emergency Leave. Employees, regardless of the employer's size, must be provided with 2 days of paid leave and 8 days of unpaid leave in each calendar year in the event of a personal emergency. Paid leave is only available to employees who have worked for their employer for 1 week or more. Employers will no longer be allowed to require a doctor's sick note from an employee taking personal emergency leave, but will retain the right to require evidence that is reasonable in the circumstances.
  • Domestic or Sexual Violence Leave. Employees with at least 13 consecutive weeks of service are entitled to up to 10 days and up to 15 weeks of leave each calendar year if the employee or a child of the employee experiences domestic or sexual violence or the threat thereof. Notably, although not entirely clear from the legislation, it appears that the 10 days of leave are intended to capture the need for intermittent days off during the calendar year and that the 15 weeks of leave are intended to capture the need for continuous leave periods. The first 5 days of the leave are to be paid by the employer. The leave must be taken for specific purposes (e.g. to seek medical attention or obtain professional counselling) as further specified in the legislation. The legislation also contains a new definition of "domestic or sexual violence leave pay" and special provisions respecting the confidentiality and disclosure of records. The overarching purpose of this new provision is to provide employees with the flexibility to take leave in accordance with their particular needs/circumstances.
  • Pregnancy Leave. The entitlement to six weeks pregnancy leave for employees who suffer a still-birth or miscarriage is increased to 12 weeks. Eligibility for this leave will only apply where the leave begins on January 1, 2018 or later.
  • Family Medical Leave. The entitlement to family medical leave is increased from up to 8 weeks to up to 28 weeks, in a 52-week period. This leave is available to provide care or support to certain family members with a significant risk of death occurring within a period of 26 weeks. Eligibility for this leave will only apply where the certificate provided in support of the leave is issued on January 1, 2018 or later.
  • Child Death Leave Replaces Crime-Related Child Death Leave. An employee is entitled to up to 104 weeks of unpaid leave if a child of the employee dies for any reason. Eligibility for this leave will only apply where the leave begins on January 1, 2018 or later.
  • Crime-Related Child Disappearance Leave. The entitlement to unpaid leave in the event of a crime-related child disappearance for an employee who has been employed by his or her employer for at least 6 consecutive months is increased from up to 52 weeks to up to 104 weeks. Eligibility for this leave will only apply where the leave begins on January 1, 2018 or later.
  • New Record Keeping Requirements. Employee records must include: (i) the dates and times that an employee worked, (ii) if an employee has 2 or more regular rates of pay and, in a work week, the employee performed work for the employer in excess of the overtime threshold, the dates and times that the employee worked in excess of the overtime threshold at each rate of pay, and (iii) the amount of vacation pay that an employee earned and how that amount was calculated. Additional record keeping requirements will become effective January 1, 2019 (see details below).
  • Temporary Help Agencies. Temporary help agencies must provide an assignment employee with 1 week's written notice or pay in lieu if an assignment that was estimated to last for 3 months or more is terminated before the end of its estimated term, unless another assignment lasting at least 1 week is offered to the employee.
  • Public Notice of Contravention. The Director of Employment Standards may publish  information about employers (including online) if deemed to be in contravention of the ESA, including (i) the names of individuals who have been issued a penalty, (ii) a description of the contravention, (iii)  the date of the contravention, and (iv) the amount of the penalty.
  • New Penalties for Non-Compliance. The proposed legislation facilitates the provision of administrative monetary penalties against employers that do not comply with the ESA. The Director of Employment Standards will be allowed, with the Minister of Labour's approval, to determine rates of interest for amounts owing under different provisions of the ESA. The Director or an authorized collector will also be able to collect wages, issue warrants, place liens on real and personal property, hold a security while a payment plan is underway, and collect and share personal information with each other for the purpose of collecting an amount payable.

Effective April 1, 2018

  • Equal Pay for Equal Work. Casual, part-time, temporary and seasonal employees will be required to be paid equally to full-time employees when performing substantially the same job (but not necessarily identical) for the same employer. Notably, the equal pay for equal work provisions will apply to the assignment employees of a temporary help agency who perform substantially the same work as an employee of the temporary help agency's client. Employees will also be able to request a review of their wages, with protection from reprisal, to which employers will be required to respond with either an adjustment in pay or a written explanation. The equal pay for equal work rules will be subject to several fairly broad exceptions including where the wage difference is based on a seniority system, merit system, system that determines pay by quantity or quality of production or "any other factor other than sex or employment status."

Effective January 1, 2019

  • General Minimum Wage Increase. Ontario's general minimum wage will again increase, this time to $15/hour.
  • Requests for Changes to Schedule or Work Location. Employees who have been employed with their employer for at least 3 months will have an ability to request changes to their schedule or work location. Employers must discuss these requests with the employee and either grant them or provide reasons for a denial. The employer's decision must be made within a reasonable time period.
  • Scheduling Protections. Subject to some exceptions, new scheduling provisions will entitle employees to (i) a guarantee of 3 hours' pay if a shift is cancelled with less than 48 hours' notice, (ii) a minimum of 3 hours' pay if an employee is required to attend at work, but works less than 3 hours, and (iii) a right to refuse requests or demands to work or be on call on a day that an employee is not scheduled to work, with less than 96 hours' notice.
  • Minimum Pay for On Call Work. Employers will be required to provide a minimum of 3 hours' pay if an employee is on call but is not required to work or if the employee does work but does so for less than 3 hours despite being available for longer (with a limited exception for employees delivering essential public services).
  • Record Keeping. Employers will be required to keep records of (i) the dates and times an employee was scheduled to work or be on call and any changes to the on-call schedule, and (ii) the date and time of any cancellations of a scheduled day of work or scheduled on call work.

Impact

  • These changes impact provincially-regulated employees in Ontario. As new provisions are implemented, employers will need to adapt to remain compliant with relevant employment standards legislation.
  • Employers may be faced with, and will need to plan for, rising costs associated with increased minimum wage, vacation pay, public holiday pay and paid emergency leave, among other potentially costly new requirements.
  • The province has announced plans to hire up to 175 more employment standards officers to investigate complaints and other matters under the ESA and to launch a program to educate small and medium businesses and employees about the ESA. This will allow officers to proactively inspect, on an annual basis, about 10% of workplaces. In the circumstances, employers should be prepared for inspection blitzes and ready to demonstrate compliance with the new legislation.

Action

  • Although the changes will not all be effective immediately, it is important for employers to be proactive and keep informed of the changing employment standards requirements for Ontario workplaces.
  • Employers should review their policies, procedures, handbooks and payroll/record-keeping practices to ensure they remain compliant with the updated legislative framework. Human resource personnel and management, in particular, should educate themselves on these changes and to this end, training is recommended.
  • For employers using casual, part-time, temporary and seasonal workers, review compensation practices and ensure that any wage differences as between full-time employees can be captured within the equal pay for equal work rule exceptions (if not, compensation may need to be re-evaluated).

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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