The New Year Brings Many Changes to Ontario’s Employment Standards Act

There is something refreshing about the start of a new year and the clean slate it provides. An exception to this euphoric “new year” feeling is for employers who commonly face a host of new employment laws on January 1. A perfect example is the Canadian province of Ontario. In 2017, Ontario enacted the Fair Workplaces, Better Jobs Act, 2017 (“Bill 148”) which, in part, drastically overhauled the Employment Standards Act (“ESA”) in Ontario. Many of these changes to ESA came into effect in 2018, forcing employers to swiftly amend their policies and practices to remain compliant. But Bill 148’s amendments did not last long. On November 21, 2018, Ontario passed the Making Ontario Open for Business Act, 2018 (“Bill 47”) which repealed or rewrote many of Bill 148’s changes. Here is a summary of several key Bill 47 amendments to Ontario’s Employment Standards Act which came into force on January 1, 2019.

Leaves of absence

Personal Emergency Leave was repealed and replaced with three days of unpaid Sick Leave for personal illness, injury, or medical emergency; three days of unpaid Family Responsibility Leave for illness, injury, medical emergency, or urgent matter regarding a covered family member; and two days of unpaid Bereavement Leave for the death of a prescribed family member. To be eligible for these new leaves, employees must work for their employer for at least two consecutive weeks. Additionally, employers are no longer prohibited from requesting reasonable evidence to support a leave request.

Scheduling

Most of the onerous scheduling rules slated to take effect on January 1, 2019 under Bill 148 were repealed, including an employee’s right to refuse an employer’s request to work or be on-call if they were scheduled with fewer than 96 hours’ notice. Left intact by Bill 47, however, is the 3-hour rule. Under the 3-hour rule, when employees who regularly work more than three hours a day are required to present themselves for work but work fewer than three hours despite being available to work longer (e.g. a shift is cut short), the employee must be paid three hours’ wages. An exception to the 3-hour rule is if the employer is unable to provide enough work because of fire, lightning, power failure, storms, or similar causes beyond their control.

Minimum wage

Under Bill 148 a general minimum wage increase to $15 per hour was scheduled to take effect on January 1, 2019. This increase was repealed, and the minimum wage will remain $14 per hour subject to an annual inflation adjustment starting on October 1, 2020.

Employee misclassification

Although it remains unlawful under ESA for employers to misclassify employees as independent contractors, Bill 47 shifts the burden back to workers to prove they are misclassified. Under Bill 148, the onus was on the employer to prove that a worker was not an employee.

Equal pay for equal work

The equal pay for equal work provisions instituted by Bill 148 have been repealed. Employees are no longer entitled to equal pay for equal work based on employment status (e.g. permanent, part-time, seasonal, temporary). Similar equal pay provisions for temporary help agency employees were also eliminated.

Monitor Legislative Activities

Not every ESA amendment introduced under Bill 148 was repealed or changed by Bill 47. For example, three weeks of paid vacation after five years of employment remains in effect, as do leave entitlements for domestic or sexual violence. But more changes may be coming, not only in Ontario but in other provinces and countries as well. Employers are strongly encouraged to monitor legislative activities wherever they have employees and, as always, expect and be ready for change.