Canada: Bill 47: Making Ontario Open For Business Act, 2018 – Employment Standards Act, 2000 Considerations

Last Updated: November 12 2018
Article by Maxwell Radway

Most Read Contributor in Canada, November 2018

On October 23, 2018, the Ontario Government announced its much anticipated legislation in relation to employment and labour law matters. The legislation, dubbed the Making Ontario Open for Business Act, 2018 (Bill 47), will remove or modify many of the obligations placed on Ontario employers by way of the Fair Workplaces, Better Jobs Act, 2017 (Bill 148). Please see the summary below for an overview of the changes to the Employment Standards Act, 2000 and the table thereunder for a more thorough review. For the Ontario Ministry of Labour's Backgrounder on the issues, please click here. For the full text of Bill 47, please click here. For an overview of changes to the Ontario Labour Relations Act, click here:

Summary of Changes – Employment Standards Act, 2000

Minimum Wage

  • The minimum wage will be frozen at $14.00 until October 1, 2020.
  • The minimum wage will be subject to an annual inflation adjustment starting on October 1, 2020.

Scheduling

  • Employees will no longer be able to submit a request to the employer requesting changes to the employee's schedule or work location.

Leave Provisions Generally

  • Family medical leave, family caregiver leave, critical illness leave, child death leave, crime-related child disappearance leave, and domestic or sexual violence leave will no longer be in addition to any of the aforementioned entitlements of leave.
  • If an employee takes a paid or unpaid leave of absence under an employment contract in circumstances for which they will be entitled to take sick leave, family responsibility leave, or bereavement leave, the employee will be deemed to have taken the leave under that section.

Personal Emergency Leave to be Replaced by Sick Leave, Family Responsibility Leave, and Bereavement Leave

  • Personal emergency leave will be repealed and replaced with unpaid sick leave, family responsibility leave, and bereavement leave, each of which will apply separately from, and in addition to each other.
  • In order to be eligible for sick leave, family responsibility leave, and bereavement leave, employees must have worked for two consecutive weeks.
  • Under these new categories of leave, the employer will be able to require evidence reasonable in the circumstances, which may include a doctor's note.
  • Additionally, leave days will be deemed to be taken as full days.

Sick Leave

  • Bill 47 will establish three days unpaid leave per year for personal illness, injury or medical emergency.

Family Responsibility Leave

  • Bill 47 will establish three days unpaid leave per year for illness, injury, medical emergency or urgent matters of a parent, grandparent, child, spouse, sibling or dependent relative.

Bereavement Leave

  • Bill 47 will establish two days unpaid leave per year for the death of a parent, grandparent, child, spouse, sibling or dependent relative.

Public Holiday Pay

  • Bill 47 proposes that public holiday pay will be calculated by the pre-Bill 148 formula of regular wages earned and vacation pay payable to the employee in the four weeks before the work week the holiday lands in, divided by 20.

Employee Misclassification

  • The reverse onus requiring the employer to prove that an individual is not an employee where there is a dispute over whether the individual is an employee will be repealed. However, the employer obligation to properly classify employees will remain.

Equal Pay for Equal Work

  • The definition of "difference in employment status" will be been repealed, thereby no longer requiring equal pay for equal work on the basis of number of hours regularly worked (i.e. part-time or full-time) or differences in the term of employment (i.e. permanent, casual, temporary, seasonal).
  • Bill 47 will repeal the right of employees to have their rate of pay reviewed by employers. Additionally, employers will no longer be required to provide a written response with reasons if an employee does request a review of their rate of pay.

Penalties for Contravention

  • The government will be returning to the previous administrative penalties for contraventions of the ESA by decreasing the maximum penalties for first, second, and third contraventions from $350/$700/$1500 to $250/$500/$1000, respectively.On October 23, 2018, the Ontario Government introduced Bill 47, Making Ontario Open for Business Act, 2018, which was created to repeal many of the employment and labour reforms that were introduced by the previous Ontario Government as part of Bill 148, Fair Workplaces, Better Job Act, 2017.

Table of Changes

Subject Matter Current Entitlement under the Employment Standards Act New Entitlement (Bill 47, once enacted)
Minimum Wage $14 minimum wage

$15 minimum wage on January 1, 2019
Minimum wage frozen at $14 until October 1, 2020

Minimum wage will be subject to an annual inflation adjustment starting October 1, 2020
Scheduling Starting January 1, 2019, employees can request changes in work schedule or location. Employers will have to provide reasons for denial.

Starting January 1, 2019, employees are entitled to three hours' pay if their shift is cancelled within 48 hours before it begins

Starting January 1, 2019, employees will 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 are entitled to three hours' pay if they are on call and not required to work, or if they work fewer than three hours

Employers must keep records of dates and times the employee was scheduled to work or be on call and any cancellations
Nearly all of the changes in respect of scheduling have been repealed

Employees who regularly work more than three hours a day, and are required to present themselves for work, but who work fewer than three hours, will be entitled to a minimum of three hours' pay

An exception to the three hour minimum still exists for fire, storm, power failure, lightning, and other similar events beyond the employers control
Personal Emergency Leave Ten days of leave due to personal illness, injury, or medical emergency for employees and/or certain family members

The first two days are paid

Employers may not require a doctor's note to substantiate these absences
Personal emergency leave has been repealed and is being replaced with sick leave, family responsibility leave, and bereavement leave, each of which apply separately from each other

Employees are entitled to three sick leave days, three family responsibility leave days and two bereavement leave days

Each new category of leave is unpaid

Eligibility for these leaves begins after two 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

Evidence reasonable in the circumstances can be requested by an employer, including a doctor's note

Sick leave: three unpaid days for personal illness, injury, or medical emergency

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

Bereavement leave: two unpaid days for the death of a parent, grandparent, child, spouse, sibling or dependent relative.
Leaves, Generally Two new categories of leave:
  • Domestic and sexual violence leave (up to 10 individual days and up to 15 weeks, with the first five 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 remain the same, however, if an employee takes a paid or unpaid leave under an employment contract in circumstances for which they 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.
Employee Classification Employers face a reverse onus to prove that a worker is not an employee if the employees status is in question Repeals the reverse onus provision

Employers must still classify employees correctly
Public Holiday Pay and Vacation Time/Pay Calculated as all regular wages earned by the employee in the four work weeks before the work week in which the holiday occurs, plus all vacation pay payable during those four weeks, divided by 20

Three weeks' vacation time/pay for employees with give or more years of service.

Two weeks' pay for employees with less than five years' service
Law remains the same
Equal Pay for Equal Work Equal pay for equal work for those who perform substantially the same (but not necessarily identical) jobs for the same employer

Equal pay for equal work on the basis of number of hours worked (part-time, full-time, seasonal, casual) and employment status (temporary)
Will maintain equal pay for equal work for those who perform substantially the same (but not necessarily identical) jobs for the same employer

Will repeal equal pay on the basis of hours worked and employment status
Penalties for Contravention $350/$700/$1500 for first/second/third administrative contravention Reduced to $250/$500/$1000 for first/second/third administrative contravention
Wage Review Employees can request a review of their wages and the employer must respond with a pay adjustment or written explanation for why they won't adjust their rate of pay This obligation has been repealed
Scope of Act 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 or her rehabilitation Repeals this exemption. Those who perform work in a simulated job or working environment (for the primary purpose is his or her rehabilitation) will be covered by the ESA

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