Bill 148 – Summary of Changes to the Employment Standards Act and When Each Change is Implemented
On November 22, 2017, the Ontario legislature passed the final version of Bill 148- the Fair Workplaces, Better Jobs Act. Below is a summary of some of the provisions of the Act , their dates of implementation and their impact on employers and employees throughout Ontario. We offer a fixed fee service for employers who need help complying with these changes.
Provision: Minimum Wage
Amendment: General minimum wage will increase to $14 per hour on January 1, 2018 and $15 per hour on January 1, 2019. There will also be a proportional increase to special minimum wage rates.
Effective Date:
January 1, 2018: $14/h
January 1, 2019: $15/h
Minimum wage will increase every year going forward subject to an annual inflation adjustment on October 1 of every year starting in 2019.
Provision: Equal pay for equal work for assignment employees
Amendment: This new change mandates equal pay for temporary help agency employees:
• equal pay for jobs that are substantially the same but not necessarily identical to regular employees;
• where performance requires substantially the same skill, effort and responsibility; and,
• when work is performed under similar working conditions.
There are however exceptions: namely, when the difference in the rate of pay is made on the basis of any other factor other than sex, employment status or assignment employee status.
Unionized employers: if a collective agreement (“CA”) that is in effect on April 1, 2018 contains a provision that permits differences in pay between employees of a client and an assignment employee, and there is a conflict between the provision of the CA and this rule, the provision of the CA prevails until the earlier of the date the CA expires and January 1, 2020.
Effective Date:
April 1, 2018
Provision: Vacation entitlement, pay and timing
Amendment: A minimum 3 week vacation entitlement to employees whose period of employment is five years or more.
There is also a requirement that an employee must pay vacation pay equal to at least, (a) 4 per cent of the wages if the employee’s period of employment is less than five years; or (b) 6 per cent of the wages if the employee’s period of employment is five years or more.
Vacation Timing: (i) The vacation must be completed no later than 10 months after the end of the vacation entitlement year for which it is given. (ii) If the employee’s period of employment is less than five years, the vacation must be a two-week period or two periods of one week each, unless the employee requests in writing that the vacation be taken in shorter periods and the employer agrees to that request. (iii) If the employee’s period of employment is five years or more, the vacation must be a three-week period or a two-week period and a one-week period or three periods of one week each, unless the employee requests in writing that the vacation be taken in shorter periods and the employer agrees to that request.
Effective Date:
January 1, 2018
Provision: Employees Who Regularly Works Three Hours are Guaranteed Three Paid Hours
Amendment: 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.
Exception: the rule does not apply if the employer is unable to provide work for the employee because of weather, fire, or other similar causes beyond the employer’s control.
Effective Date:
January 1, 2019
Provision: Overtime pay when employee has two or more rates of pay
Amendment: If an employee has two or more regular rates for work performed for the same employer in a work week, the employee is entitled to be paid overtime pay for each hour of work performed in the week after the total number of hours performed for the employer reaches the overtime threshold.
Additionally, the overtime pay for each hour is one and a half times the regular rate that applies to the work performed in that hour.
Effective Date:
January 1, 2018
Provision: Critical-Illness of an Adult Family Member
Amendment: An employee may take leave to provide care and support to any critically ill family member for up to 17 weeks
A qualified health practitioner must issue a certificate that, (a) states that the adult is a critically ill adult who requires the care or support of one or more family members; and (b) sets out the period during which the adult requires the care or support.
Effective Date:
December 3, 2017
Provision: Termination of temporary agency assignment employees
Amendment: Temporary help agencies must now provide an assignment employee with one week’s written notice or pay in lieu, if an assignment that was estimated to last for three months or more, is terminated before the end of its estimated term, unless another assignment lasting at least one week is offered to the employee.
Effective Date:
January 1, 2018
Provision: Record Keeping Requirements for Temporary Help Agencies.
Amendment: Temporary help agencies must:
– record the number of hours worked by each assignment employee for each client of the agency in each day and each week; and
-retain a copy of any written notice provided to the employee upon termination of an assignment.
Effective Date:
January 1, 2018
Provision: Misclassification of workers
Amendment: An employer who wrongfully classifies a worker as a non-employee (i.e. an independent contractor, or other nonemployee) will now be in contravention of the ESA and subject to penalties.
Note: The burden of proof lies on the employer to show that the person is not an employee.
Effective Date:
November 27, 2017
Provision: Holiday Pay
Amendment: Holiday pay will be calculated as the average daily wages earned in the pay period leading up to the holiday instead of the current law which is calculated as wages and vacation pay earned in the four work weeks prior to the week in which the holiday falls, divided by 20.
If the employee was not employed during the pay period immediately preceding a public holiday, the employee’s public holiday pay for the public holiday shall be equal to the amount of regular wages earned in the pay period that includes the public holiday divided by the number of days the employee worked in that period.
Effective Date:
January 1, 2018
Provision: Paid Personal Emergency Leave
Amendment: All employees will be entitled to 10 days off for personal emergencies, the first two of which must be paid.[Note: Currently, employees who work for employers with less than 50 employees are not entitled to this leave. Also, employees are not currently entitled to any paid personal emergency leave.]Employers retain the right to require evidence of entitlement to these days but are not permitted to require a certificate from a qualified health practitioner.
Qualifying period: The employee must have worked for the employer for at least one week before reaching entitlement for the two paid days. Regardless of overtime pay or shift premiums, the employee will be paid regular wages.
Effective Date:
January 1, 2018
Provision: On-Call Employees – Guaranteed Three Paid Hours
Amendment: 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, and this is required for each 24-hour on-call period.
Note: Currently an employee who is called into work is entitled to the greater of their wages earned and three hours at the minimum wage.
Exceptions: the rule does not apply if the employer is unable to provide work for the employee because of weather, fire, or other similar causes beyond the employer’s control.
The three-hour rule also does not apply if the employer required the employee to be on call for the purposes of ensuring the continued delivery of essential public services.
Effective Date:
January 1, 2019
Provision: Right to request changes to schedule or work location
Amendment: Employees with at least three months’ tenure with their employer can request changes to their schedule or work location. Employers who receive these requests must discuss them with the employee and either grant them or provide reasons for their denial.
Effective Date:
January 1, 2019
Provision: Pregnancy and parental leave
Amendment: Pregnant employees with at least 13 weeks service will be entitled to 18 months pregnancy and parental leave. (Effective Date: December 3, 2017)
Amendments will extend the leave for employees who suffer a stillbirth or miscarriage from 6 to 12 weeks. (Effective Date: January 1, 2018)
The length of parental leave is extended from 35 to 61 weeks if the employee took a pregnancy leave and from 37 to 63 weeks for employees who did not. An employee may commence parental leave no later than 78 weeks (previously 52) after the day the child is born or comes into the employee’s care or custody for the first time. (Effective Date: December 3, 2017)
Provision: Record Keeping
Amendment: A larger list of recordkeeping requirements has been imposed, which will be coming into force on varying dates:
– Dates and hours worked.
– Where an employee has two or more regular rates of pay, the dates and times that the employee worked in excess of the overtime threshold at each rate of pay.
– Records of substitute holidays (mentioned above).
– Retention of documents for all leaves. – Record-keeping of vacation pay and vacation time.
– Record retention for 5 years instead of 3
Effective Date:
January 1, 2018
Provision: Footwear with elevated heel under the Occupational Health and Safety Act (“OHSA”)
Amendment: A new section is added to the OHSA stating that an employer shall not require a worker to wear footwear with an elevated heel unless it is required for the worker to perform his or her work safely. An exception to this prohibition is made for employers or performers in the entertainment and advertising industry.
Effective Date:
November 27, 2017
Provision: Equal Pay for Equal Work – No difference in pay rate because of employment status
Amendment: Employers will be prohibited from paying employees at different rates depending on whether they are full-time, part-time, seasonal, etc. unless an exemption applies.
An employee may request a review of their rate of pay from the employer, to which the employer must respond if it disagrees with the employee’s belief that this section has been breached.
Note: The reprisal provisions have been amended to protect employees who avail themselves of this change.
The rule will not apply when the difference in pay rate is made on the basis of: (a) a seniority system; (b) a merit system; (c) a system that measures earnings by quality of production; or, any other factor other than sex or employment status.Unionized employers: if a collective agreement (“CA”) that is in effect on April 1, 2018 contains a provision that permits differences in pay based on employment status, and there is a conflict between the provision of the CA and this rule, the provision of the CA prevails until the earlier of the date the CA expires and January 1, 2020.
Effective Date:
April 1, 2018
Provision: Substitute holidays
Amendment: The rule on substituted holidays remains but with the new imposition of written requirements for documenting substitutions.
Under the new law, the employer must provide the employee with a written statement outlining: a) the public holiday (on which the employee will work); b) the substitution date; and, c) the date the written statement was provided to the employee.
Effective Date:
January 1, 2018
Provision: Cancellation Pay – Guaranteed Three Paid Hours
Amendment: Employees are entitled to a minimum of three hours’ pay at their regular rate (i) for being on call (even if they are not called into work) or (ii) if an employer cancels the employee’s shift within 48 hours of the start of that shift.
This amendment includes exemptions in circumstances:
• Beyond the employer’s control – such extreme weather, power failure, etc.
• Where the work is weather dependent and the employer cannot provide work for weather dependent reasons.
• Where the employer requires the employee to be on call for the purposes of ensuring the continued delivery of essential public services.
Unionized employers:
if a collective agreement (“CA”) that is in effect on January 1, 2019 contains a provision that addresses payment when the employer cancels the employee’s scheduled work or on-call period, and there is a conflict between the provision of the CA and this rule, the provision of the CA prevails until the earlier of the date the CA expires and January 1, 2020.
Effective Date:
January 1, 2019
Provision: Right to Refuse – 96 Hour Rule
Amendment: An employee is now entitled to refuse without repercussion an employer’s request to work or to be on call if the request is made less than 96 hours prior to the commencement of the shift.
Exception: Where the work is to: a) deal with an emergency; b) to remedy or reduce a threat to public safety; c) ensure the continued delivery of essential public services; or d) for such other reasons as may be prescribed.
Note: An “emergency” is this section would refer to a situation or an impending situation that constitutes a danger of major proportions that could result in serious harm to persons or substantial damage to property and that is caused by the forces of nature, a disease or other health risk, an accident or an act whether intentional or otherwise, or a situation in which a search and rescue operation takes place.
Unionized employers: if a collective agreement (“CA”) that is in effect on January 1, 2019 contains a provision that addresses an employee’s ability to refuse the employer’s request or demand to perform work or be on call on a day the employee is not scheduled to work or be on-call, and there is a conflict between the provision of the CA and this rule, the provision of the CA prevails until the earlier of the date the CA expires and January 1, 2020.
Effective Date:
January 1, 2019
Provision: Domestic or sexual violence leave
Amendment: An employee, who has been employed by an employer for at least 13 consecutive weeks, is entitled to take a leave of absence if the employee or their child experiences sexual or domestic violence.
The leave can be up to 10 days (taken individually), and up to 15 weeks (intermittently) to a maximum of 17 weeks total. The leave may be taken: to seek medical attention; to obtain services from a victim services organization; to obtain counselling; to relocate; or, to seek legal or law enforcement assistance.
The first 5 days of the leave must be paid.
Effective Date:
January 1, 2018
Provision: Family medical leave
Amendment: Increased leave from 8 to up to 28 weeks of leave. Expansion of the definition of “qualified health practitioner” to now include certain registered nurses or individuals with equivalent qualifications, and, in some circumstances a member of a prescribed class of health practitioners.
Effective Date:
January 1, 2018
Provision: Record Keeping Requirements for Employers with On-Call Employees
Amendment: Employers with on-call employees:
– Dates and times of work and on-call schedules, and any changes made to oncall scheduling
-Dates and times of cancellations of a scheduled day of work or scheduled on-call period.
Effective Date:
January 1, 2019
The material and information in this blog and this website are for general information only. They should not be relied on as legal advice or opinion. The authors make no claims, promises, or guarantees about the accuracy, completeness, or adequacy of any information referred to in this blog or its links. No person should act or refrain from acting in reliance on any information found on this website or blog. Readers should obtain appropriate professional advice from a lawyer duly licensed in the relevant jurisdiction. These materials do not create a lawyer-client relationship between you and any of the authors or the MacLeod Law Firm.
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