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On November 21, 2018, Bill 47, the Making Ontario Open for
Business Act, passed third reading and received Royal
Assent.
With respect to the Employment Standards Act, 2000,
there were no further changes to the version of Bill 47 that was
introduced in the Legislature on October 23, 2017. The only item
that has now been clarified is that many of the changes will take
effect on January 1, 2019, as was anticipated. This date is
significant for a number of reasons:
Bill 148 changes:
Although Bill 148 was passed almost exactly a year ago on November
22, 2017, it included provisions that had a delayed implementation
date of January 1, 2019, including provisions relating to
scheduling (e.g. the 96-hour rule, on-call pay, etc.). Due to the
passage of Bill 47, those provisions will never come into
force.
New leaves: The new
unpaid leave provisions introduced through Bill 47, which include
sick leave, family responsibility leave and bereavement leave,
provide employees with a certain number of leave days per
calendar year. Employees will therefore have the full 2019
calendar year to use their new leave days.
Interim period:
Between now and January 1, 2019, the existing Bill 148 provisions
remain in effect. Employers should be aware that employees may seek
to claim their Bill 148 entitlements before the changes take effect
at the beginning of 2019. This may particularly be the case with
the two (2) days of paid Personal Emergency Leave, which
effectively “expire” on December 31, 2018 if not taken
prior to that date.
In the chart below we summarize how Bill 47 will impact the
changes previously made to the Employment Standards Act,
2000 through Bill 148. While the changes are extensive, some
aspects of Bill 148 are being maintained, including the $14 minimum
wage, the increase to 3 weeks of vacation after 5 years, and the
majority of the new and expanded statutory leaves of absence
(including Domestic of Sexual Violence Leave).
REPEALED
AND REPLACED
Repealed Bill 148
provision
New Bill 47 provision
Effective date
Minimum wage of $15 per hour
General minimum wage increases to $15.00
per hour (from rate of $14.00 per hour in place as of January 1,
2018)
Special minimum wages for students
($14.10), liquor servers ($13.05) and homeworkers ($16.50) also
increase
Beginning on October 1, 2020, the $14 per
hour minimum wage will be subject to an annual inflation adjustment
on October 1 of every year
N/A
Sick leave, family responsibility leave and bereavement
leave
replaces
Expanded Personal Emergency Leave (PEL)
All employers must provide 10 days of
PEL per calendar year, the first two of which must be
paid
Employees cannot require employee to
provide medical note as a condition of receiving
PEL
All employees will be entitled to the
following leaves in each calendar year, all of which are
unpaid:
up to 3 days of unpaid “sick
leave” (personal illness, injury or medical
emergency)
up to 3 days of unpaid “family
responsibility leave” (illness, injury, medical emergency or
“urgent matter” relating to certain family
members)
up to 2 days of unpaid “bereavement
leave” (death of certain family members)
Certain restrictions apply (e.g. must have
been employed for at least 2 weeks, leave to be taken in entire
days, no duplication if employment contract already provides for
similar paid or unpaid leave)
Employer may require reasonable evidence
that employee is entitled to leave, with no express restriction on
requesting medical note
January 1,
2019
AMENDMENTS
Current Bill 148
provision
New Bill 47 amendment
Effective date
Classification as contractor
Employers are prohibited from treating
person who is an employee as if not an employee (i.e. as a
contractor)
Onus of proof that person is not an
employee is on employer
Prosecution and monetary penalties under
ESA for misclassification
The prohibition on treating employees as
contractors remains
The “reverse onus” in s. 5.1(2)
is repealed
N/A
January 1,
2019
Holiday pay
Holiday pay calculation will be based on
number of days actually worked
Employees that work on the public holiday
and receive a substitute day off must also be provided with written
notice of the day of the substitute holiday
Previous prorated public holiday pay formula
reinstated
January 1,
2019
Note: this change had already been
implemented on an interim basis by regulation as of July 1,
2018
Equal pay for equal work - sex
Prohibition on basing differences in pay on
sex remains the same
Employees have new right to request a
“review” of their rate of pay and to receive a
substantive written response from their employer
The prohibition on basing differences in pay
on sex remains the same
The right of an employee to request a
written “review” and receive a substantive written
response is repealed
N/A
January 1,
2019
REPEALED AND NOT
REPLACED
Repealed Bill 148
provision
Currently in effect
New Bill 47 provision
Effective date
Equal pay for equal work - employment status
Employers cannot base differences in pay
on employment status (e.g. whether the employee is full-time /
part-time / casual / temporary / seasonal)
Employees have new right to request a
“review” of their rate of pay and to receive a
substantive written response from their employer
Repealed - no remaining obligation or
entitlement
January 1,
2019
Equal pay for equal work - assignment employee
status
Temporary help agencies cannot base
differences in pay on assignment employee status
Employees have new right to request a
“review” of their rate of pay and to receive a
substantive written response from their employer
Repealed - no remaining no obligation or
entitlement
January 1,
2019
Repealed Bill 148
provision
Would have taken effect January 1,
2019
New Bill 47 provision
Changes to schedule or work location
Employees with at least three months of
service may submit a written request to change their schedule or
work location. .
Repealed - no remaining obligation or
entitlement
Will not come into effect
On-call employees - guaranteed three paid
hours
If “on call” employees are not
called into work, or are called in but work less than three hours
despite being available to work longer, then they must be paid
three hours at their regular pay rate
Repealed - no remaining obligation or
entitlement
Will not come into effect
Right to refuse - 96 hour rule
An employee can refuse to work or to be
on-call on a day that they were not scheduled to work or be on-call
if the employer does not provide 96 hours’ notice
Repealed - no remaining obligation or
entitlement
Will not come into effect
Cancellation pay - guaranteed three paid hours
If a scheduled shift or scheduled on-call
assignment is cancelled within 48 hours of the scheduled start
time, employees must be paid three hours at their regular pay
rate
Repealed - no remaining obligation or
entitlement
Will not come into effect
MAINTAINED
Bill 148 provision currently in
effect that will not be impacted by Bill 47
Minimum wage of $14 per hour
General minimum wage increases to $14.00 per
hour (from rate of $11.60 per hour in place as of October 1,
2017)
Special minimum wages for students ($13.15),
liquor servers ($12.20) and homeworkers ($15.40) also
increase
Vacation with pay
Vacation time increases from 2 weeks to 3
weeks after 5 years of service
Vacation pay increases from 4% of wages to
6% of wages after 5 years of service
Extended parental leave
Increases to 61 weeks (from 35 weeks) for
employees who take pregnancy leave
Increases to 63 weeks (from 37 weeks)
otherwise
Extended pregnancy leave
Increases from 6 weeks to 12 weeks for
employees who experience a still-birth or miscarriage
Expanded critical illness leave
Up to 17 weeks to provide care and support
to a critically ill adult family member
In addition to existing critically ill
child care leave of up to 37 weeks)
New Domestic or Sexual Violence Leave
Employees will be entitled to a leave of
absence where the employee or the employee’s child
experiences domestic or sexual violence or the threat of domestic
or sexual violence
The length of the leave can be up to 10 days
(if taken as days) or 15 weeks (if taken as full weeks)
The first five days of the leave must be
paid
Extended Family Medical Leave
Increases from 8 weeks to 28 weeks per 52
week period to provide care or support to a family member who has a
serious medical condition with a significant risk of death within
26 weeks
Bill 148 provision that would have
taken effect on January 1, 2019 that will not be impacted by Bill
47
Three hour rule
Employees who regularly work more than three
hours each day must be paid three hours at their regular pay rate
if they are required to work and work for less than three hours
despite being available to work longer
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be ought
about your specific circumstances.
