Changes to the Employment Standards Act of Ontario

Ontario has made significant and controversial changes to workplace legislation.  The bulk of these alterations came into effect January 2018.  Below is a summary of the changes to the Employment Standards Act as a consequence of the Fair Workplaces, Better Jobs Act,

Changes to the Employment Standards Act,

• No High-Heeled Shoes.  Employers can no longer objectify workers by requiring staff wear high-heeled shoes. The “entertainment and advertising industry” is exempt including workers involved with producing live or broadcast performances or visual, audio-visual recordings of performances in any medium or format.

• Misclassification of Independent Contractors.  An Employer faces fines for incorrectly classifying an Employee as an Independent Contractor. The Ministry of Labour will presume a worker to be an Employee.  Employers face a reverse onus to demonstrate that Independent Contractors are not Employees.

• Extended Parental Leave.  Parental Leave for Employees with children born after December 3, 2017 is extended by 26 weeks.  Where an Employee takes Pregnancy Leave Parental Leave is increased to 61 weeks.  Where Pregnancy Leave is not taken Parental Leave entitlement is increased to 63 weeks.

• Critical Illness Leave.  The former “Critically Ill Child Care Leave” is extended to critically ill adults and replaced by a new “Critical Illness Leave”.  Employees are now entitled to 37 weeks leave for a critically ill minor child and a 17 week leave for a critically ill adult.

• Minimum Wage.  Minimum wage is increased as follows:

• Mandatory Paid Sick Days.  All Employees in Ontario are entitled to 10 days of Personal Emergency Leave the first two of which are paid.

• Domestic Violence Leave.  An Employee may take leave of up to 10 days and another leave of up to 15 weeks for the purpose of seeking medical attention for a physical or psychological injury or disability caused by domestic or sexual violence;  obtaining services from a victim services organization; obtaining psychological or other professional counseling; relocating temporarily or permanently; seeking legal or law enforcement assistance; or any other prescribed purposes. The first five days of leave are to be paid.

• Extended Leaves of Absence.  Family Medical Leave changed to 28 weeks in a 52 week period. Child Death or Disappearance Leave expanded to include the death of a child (non-crime related) and the disappearance of a child (non-crime related). Disappearance Leave is increased from 52 to 104 weeks.

• Increased Vacation.  After an Employee has worked for five years an Employer must provide at least three weeks of time off and 6% of wages as vacation pay.

Changes Effective April 1, 2018

• Equal Pay for Equal Work.  An Employer must provide equal pay to workers who perform “substantially the same” type of work.  The change targets employers who have part-time workers at lower rates performing substantially the same work as full-time employees.  The work must require the same skill, effort and responsibility, and where be performed under similar working conditions.  Exemptions exist where the difference in rate of pay is made on the basis of a seniority system, merit, a measurement of earnings by quantity or quality of production, or any other factor except for sex or employment status.

Changes Effective January 1, 2019

• Minimum Wage.  Minimum wage is raised as follows:

• Flexible Scheduling Requests.  After three months of service an Employee can request a change to their hours of work providing a more flexible schedule or altering their work location. Employers who receive these requests must discuss them with the Employee and either grant the request or provide written reasons for a denial.

• On-Call Pay.  Employees are entitled to 3 hours of on call pay whether or not they are called in and whether or not work is performed.

• Compensation for Last-Minute Schedule Changes. Where a scheduled shift or on-call period is cancelled 48 hours prior to its commencement an Employer is required to pay for 3 hours of work. In certain circumstances beyond the Employer’s control (ie. fire, power failure, storms) or in situations where the nature of the Employee’s work is weather-dependent and the Employer cannot provide work for weather-related reasons there is no obligation to pay.

• Requests to Work Extra Shifts.  An Employee can refuse, without penalty, to work on a day not previously scheduled where the Employer gives less than 96 hours of notice.  This provision does not apply where the Employee is required to deal with an emergency, to remedy or reduce a threat to public safety, to ensure the continued delivery of public services (regardless of who delivers those services), or for other prescribed reasons.

• Record-Keeping.  Employers must document and retain records of the dates and times that an employee was scheduled to work or to be on-call for work, and any changes made to the on-call schedule; the dates and times the employee worked; if the employee has two or more regular rates of pay for work performed for the employer, 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; any cancellations of a scheduled day of work or scheduled on-call period of the employee and the date and time of the cancellation; written agreements to work public holidays; the dates an employees is on a  leave of absence;  and the amount of vacation time and vacation pay the employee earned during the vacation entitlement year and how that amount was calculated.