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Calling all health sector employers: Bill 47 Changes to the Ontario Employment Standards Act, 2000

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This blog was written by Maria McDonald from McDonald HR Law

Bill 47 became law on November 21, 2018. It becomes effective on January 1, 2019.

Bill 47 replaces and revises many of the changes to the Employment Standards Act, 2000 (ESA) introduced last year by Bill 148.

I know you just finished making all the changes from last year.  It’s time to start again.

To help you sort through the changes, I have organized the changes into nine topics and highlighted the “Former” (Bill 148) requirements and the “New” (Bill 47) requirements.

TOPIC 1: LEAVES OF ABSENCE

FORMER (2018) – 10 Personal Emergency Leave Days (PEL Days) – 2 of which were paid

NEW (2019)–  The PEL days to be replaced with separate unpaid leaves for sick leave, bereavement leave and family responsibility days

Number of unpaid days of leave

  • 3 Sick Days
  • 2 bereavement days, and
  • 3 family responsibility days

Purpose of leaves

  • Sick days – personal illness, injury or medical illness
  • Family Responsibility leave – illness, injury or medical emergency of a listed family member, or an urgent matter that affects the family member. List of family members is the same as under Bill 148 (2018)
  • Bereavement leave – death of a family member. Same listed members as for Family Responsibility Leave. The leave is 2 days total for the year, not for 2 days for each family member.

Eligibility Requirements

  • Employees must be employed for 2 weeks before being eligible for any of these leaves
  • Leaves are based on a calendar year and not prorated; employees hired anytime during the year are entitled to the full leaves.
  • Any day taken by an employee under an employment contract will be deemed to be a day of ESA leave. As such, a paid or unpaid sick day under a contract of employment (or employer policy) will also be deemed to be a sick day under ESA. Employees do NOT get sick days under the employment contract plus another 3 sick days under the ESA (unless the employer’s policy provides for a greater benefit). This is the same rule for bereavement leave and family responsibility leave days.
  • Employers can still ask for evidence of eligibility AND they CAN ask for a doctor’s note. Employers were prohibited from asking for a doctor’s note under Bill 148.

TOPIC 2: INDEPENDENT CONTRACTOR RELATIONSHIPS

FORMER – Employers had the onus of proving that a relationship with a worker was an independent contractor relationship and not an employment relationship (if the status of the relationship was challenged before the Ministry of Labour)

NEW – Employees have the onus of proving they are employees (if they make a claim that they are not independent contractors and are therefore entitled to the entitlements under the ESA)

TOPIC 3: CALCULATING HOLIDAY PAY

FORMER – Calculating holiday pay is the sum of all wages and vacation pay earned in 4 weeks before the work week with the public holiday, divided by 20.

NEW – No revisions – same calculation applies

TOPIC 4: EQUAL PAY FOR DIFFERENT TYPES OF EMPLOYMENT STATUS

FORMER – Employer were prohibited from paying an employee a different rate based on the (employment status (part time vs. full-time, temporary vs. permanent). This was to be effective January 1 ,2019

NEW – This rule will NOT be coming into effect in 2019. Employers can continue to pay different rates based on employment status

TOPIC 5: MINIMUM WAGE

FORMER – Minimum wage set to increase to $15.00 on January 1, 2019

NEW – Minimum wage will remain at $14.00 per hour on January 1, 2019. Commencing 2020, minimum wage increases will be tied to the Consumer Price Index. First possible increase will be on October 1, 2020.

TOPIC 6: WORK SCHEDULES, CALL IN PAY AND SHIFT CANCELLATIONS

FORMER – Effective January 1, 2019 – employees were being provided with the following new entitlements; specifically, the right to:

  1. Request schedule changes and work location changes after 3 months of employment
  2. Be paid 3 hours pay if on call and called in for less than 3 hours or not called in at all
  3. Be paid 3 hours pay if shift cancelled with less than 48 hours’ notice
  4. Refuse a shift scheduled with less than 96 hours’ notice

NEW – The foregoing entitlements will NOT come into effect on January 1, 2019.  The only new rule coming into effect on January 1, 2019 is that employees who regularly work more than 3 hours a day and who are required to come to work but end up working less than 3 hours – they will get paid the greater of 1) wages for hours worked plus wages equal to the employee’s regular rate for the remainder of the time and 2) wages at the regular rate for 3 hours of work.

This will not apply if the employer is unable to provide work due to fire, lightning, power failure, storms or other similar cases beyond the employer’s control. As such, employers won’t have to pay employee missed time due to inclement weather.

TOPIC 7: VACATION

FORMER – 3 weeks after 5 years of employment

NEW – No change; 3 weeks after 5 years of employment

TOPIC 8: DOMESTIC AND SEXUAL VIOLENCE LEAVE

FORMER – 10 days and 15 weeks of leave per calendar year if employee or his/her child is victim of domestic or sexual violence or threat of domestic or sexual violence. The first five days are paid.  The leave must be taken for specific purposes of seeking counselling, lodging or legal assistance.

NEW –  No change

TOPIC 9: RECORD KEEPING

FORMER – Employers were required to maintain additional records:

  1. The dates and times the employee worked
  2. If the employee has two or more regular rates of pay for the employer and the employee performs overtime (more than 44 hours) in a week, the dates and times the employee worked overtime at each rate of pay
  3. The amount of vacation pay the employee earned during the vacation entitlement year or stub period and how that amount was calculated.
  4. Records had to be kept for 5 years.

NEW –  These records keeping requirements have been eliminated. And no new requirements have been added to the pre-Bill 148 record keeping rules.

 

Exhausted yet?  Stay tuned for more helpful information from Maria McDonald about how to incorporate these changes into your health sector workplace.

Maria McDonald is a guest blogger. She can be reached at maria@mcdonaldhrlaw.com 


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