BILL 148 – A SUMMARY
Ontario’s economy, like others around the world, has changed. Work is different and, for many people, increasingly less secure. Many workers struggle to support their families on part-time, contract or minimum-wage work, and many more don’t have access to time off due to illness.
In order to create more opportunity and security for workers in this changing economy, we introduced the Fair Workplaces, Better Jobs Act, 2017. It was passed on November 22, 2017.
This legislation makes a number of changes to both the Employment Standards Act, 2000, the Labour Relations Act, 1995, and the Occupational Health and Safety Act, including raising the minimum wage and providing employees with:
Minimum wage
We’ve introduced legislation to increase the general minimum wage to $14 per hour on January 1, 2018, and then to $15 on January 1, 2019.
Equal pay for casual, part-time, temporary and seasonal employees
What’s changing
It will be mandatory for employers to pay:
- casual, part-time, temporary and seasonal employees, who are doing substantially the same work as full-time/permanent employees, the same rate of pay as full-time/permanent employees
- temporary help agency employees (also known as assignment employees), who are doing substantially the same work as employees of the client, the same rate of pay as employees of the client
Casual, part-time, temporary and seasonal employees will be allowed to ask their employer to review their rate of pay if they believe they’re not receiving the same rate of pay as full-time/permanent employees who perform substantially the same work.
Temporary help agency employees will also be allowed to ask their employer to review their rate of pay if they believe they’re not receiving the same rate of pay as employees of the client who perform substantially the same work.
The employer will have to respond by either adjusting the employee’s pay or giving the employee a written explanation.
Exceptions
Employers will be exempt from the new equal pay for equal work rules for part-time, temporary, casual and seasonal employees, if the wage difference is based on:
- a seniority or merit system
- systems that measure earnings by quantity or quality of production
- other factors (sex and employment status will not qualify as an exception)
Temporary help agencies will be exempt from the new equal pay for equal work rules for temporary help agency assignment employees if the difference in the rate in pay is based on something other than sex, employment status or assignment employee status.
Comes into effect
This will come into effect on April 1, 2018.
Scheduling
What’s changing
The legislation will allow employees to:
- request a schedule or location change once they’ve been employed for three months, without fear of being penalized
- refuse shifts if their employer asks them to work with less than 96 hours’ notice, without fear of retaliation, with certain exceptions
Employers will also be required to pay wages to the employees for three hours of work if the employee:
- •egularly works more than three hours a day, shows up for work and works less than three hours or not at all (for example, the shift is cut short)
- the shift is cancelled within 48 hours of their scheduled start time, with certain exceptions
- is scheduled to be on-call but, despite being available to work, is either not called in to work or works less than three hours. This will be required for each 24-hour period the employee is on call
Exceptions
Cancellations
Employers will not be required to pay for a cancelled shift if they were unable to provide work because of:
- fire, lightning, power failure, storms or similar causes beyond their control or
- the employee’s work is weather-dependent and the employer is unable to provide work for weather-related reasons
Three hour rule
Employers will not be required to pay wages for three hours for a shift that lasts fewer than three hours if they were unable to provide work because of fire, lightning, power failure, storms or similar causes beyond their control
Refusing a shift with less than 96 hours’ notice
Employees cannot refuse a shift if the reason that the employer is asking them to work or be on call is to:
- deal with an emergency
- remedy or reduce a threat to public safety
- ensure the continued delivery of essential public services, regardless of who delivers those services
On-call pay rules
Employers will not be required to pay wages for three hours for an on-call shift if the employee is on call to ensure the continued delivery of essential public services, regardless of who delivers those services and the employee was not required to work.
Comes into effect
These scheduling changes will come into effect on January 1, 2019.
Vacation time
What’s changing
Under the legislation, employees will be entitled to three weeks of paid vacation after five years with the same employer.
Comes into effect
This will come into effect on January 1, 2018.
Personal emergency leave
What’s changing
Currently, some employees have the right to take up to 10 days of unpaid, job-protected leave, each calendar year due to illness, injury and other emergencies/ urgent matters. But these rules only apply to workplaces with 50 or more employees.
The legislation will require all employers to give all employees 10 personal emergency leave days per year, including two paid days if the employee has been employed for one week or longer (7 days).
Comes into effect
This will come into effect on January 1, 2018.
Domestic or sexual violence leave
What’s changing
An employee who has been employed for at least 13 consecutive weeks will be entitled to up to 10 individual days of leave and up to 15 weeks of leave if the employee or their child experiences domestic or sexual violence or the threat of domestic or sexual violence. The first five days of leave, each calendar year, will be paid, the rest will be unpaid.
Comes into effect
This will come into effect on January 1, 2018.
Employee misclassification
What’s changing
Employers cannot misclassify employees as independent contractors. This address cases where employers treat employees as if they are self-employed and not entitled to employment standards protections. If there is a dispute the employer will have to prove that an individual is not an employee.
Comes into effect
This came into effect on November 27, 2017.
Footwear with an elevated heel
What’s changing
Under the Occupational Health and Safety Act, employers cannot require workers to wear footwear with an elevated heel (for instance, high heels) unless they are needed for the worker’s safety.
Exceptions
This does not apply to employers of workers in the entertainment and advertising industries.
Comes into effect
This came into effect on November 27, 2017.
How we enforce the Employment Standards Act
What’s changing
We are stepping up enforcement to make sure these new rules are followed, including:
- focusing on employers who compete unfairly by breaking the law
- protecting the majority of employers that follow the rules from experiencing unfair competition from employers that do not
- launching a program to educate both employees and small and medium-sized businesses about their rights and obligations under the Employment Standards Act, 2000
- hiring up to 175 more employment standards officers
- Once the new employment standards officers are hired, the Employment Standards program will:
- resolve all claims within 90 days
- inspect one in 10 Ontario workplaces every year
- assist new employers, specifically medium and small business, to comply with the Employment Standards Act, 2000
Other changes
Learn more about some of the other changes to the Employment Standards Act, 2000and the Labour Relations Act, 1995, including:
- overtime pay
- liability for related employers
- public holiday pay
- leave for the death of a child and for crime-related disappearance
- family medical leave
- physician notes for absences
- orders to pay employees directly
- employee contact
- collections
- electronic agreements
- exclusions
- union certification
- successor rights
- structure of bargaining units
- return-to-work rights and procedures
- just cause protection
- fines
Frequently asked questions
Minimum wage
How are you increasing the minimum wage?
- The general minimum wage rises to $14 on January 1, 2018
- It will rise to $15 on January 1, 2019
- On Jan. 1, 2018, when the general minimum wage rises to $14, the following special minimum wages would take effect:
o Students under 18 - $13.15/hour
o Liquor Servers (who regularly receive tips) – $12.20/hour
o Hunting and Fishing Guides
Working under 5 consecutive hours – $70/day
Working 5 or more hours – $140/day
o Homeworkers
110% of general minimum wage – $15.40/hour
- On Jan. 1, 2019, when the general minimum wage rises to $15, the following special minimum wages would take effect:
o Students under 18 – $14.10/hour
o Liquor Servers (who regularly receive tips) – $13.05/hour
o Hunting and Fishing Guides
Working under 5 consecutive hours – $75/day
Working 5 or more hours – $150/day
o Homeworkers
110% of general minimum wage – $16.50/hour
- Yearly increases to the minimum wage (based on the Consumer Price Index) will resume in October of 2019.
What is the purpose of the minimum wage?
- Minimum wage is generally the lowest rate that can be paid by employers to employees.
- The general intent of the minimum wage is to create a wage floor for the labour market, ensure a minimum standard of living for employees, and to prevent employers from taking unfair advantage of employees with little or no bargaining power.
When will the next consumer price index (CPI) increase to the minimum wage take effect?
Since the minimum wage will rise to $14 on January 1, 2018, and then to $15 on January 1, 2019, the next CPI increase would occur on Oct. 1, 2019.
Why is the review of the minimum wage process now scheduled to occur in 2024?
- Based on the Minimum Wage Advisory Panel’s recommendation, the first 5-year review of the minimum wage process was scheduled to occur in 2019.
- However, based on the ministry’s current proposal and the amendments that would take place in 2018 and 2019, it would be ideal for the ministry to reset the current timeline for the review, as well.
- The first review of the minimum wage process would occur in 2024 instead.
- The Advisory Panel concluded that the CPI model as a basis to adjust the minimum wage rate was the most favoured by stakeholder groups.
- The government is confident that this process should stay in place for the time being.
What do the raises in the minimum wage mean for the work the Ontario government is doing on income security and also the Basic Income pilot? Do we really need to be moving forward with those given we’ll be having a higher minimum wage?
A minimum wage is just one tool for ensuring that all Ontarians can share in our joint prosperity. This builds on the work that the government is doing with income security, the basic income pilot and also other initiatives such as OHIP+, free tuition for low income Ontarians and the expanded Canada Pension Plan.
Employee misclassification
What changes have been brought in through the Fair Workplaces, Better Jobs Act to address employee misclassification?
The Fair Workplaces, Better Jobs Act amends the Employment Standards Act to expressly prohibit employers from misclassifying an employee as a contractor. This could allow for penalties to be imposed on employers that misclassify. In the event of a dispute, the responsibility would be on the employer to prove that the individual is not an employee.
How will this help employees?
Being misclassified as a contractor can result in an employee being unjustly denied rights and benefits under provincial labour laws. This new provision will protect against such misclassifications.
Scheduling
What changes does the Fair Workplaces, Better Jobs Act make with regard to employee scheduling?
The legislation sets out new scheduling rules:
- Employees will have the right to request schedule or location changes after having been employed for three months, without fear of reprisal.
- Employees who regularly work more than three hours per day, but upon reporting to work are given less than three hours, must be paid for three hours of work.
- Employees can refuse to accept shifts without repercussion if their employer asks them to work with less than 96 hours’ notice.
- If a shift is cancelled within 48 hours of its start, employees must be paid three hours of work.
- When employees are "on-call" and not called in to work or works less than three hours, they must be paid for three hours of work. This would be required for each 24 hour period that employees are on-call.
- The new legislation provides a transition period for existing collective agreements until the earlier of their expiry or January 1, 2020.
- There are a number of exceptions to the new scheduling requirements that reflect a number of situations, including emergencies and ensuring delivery of essential public services.
These scheduling rules come into force on January 1, 2019.
What are the exceptions to the new scheduling requirements?
There are a number of exceptions to the new scheduling requirements which include the following:
- Cancellation – employers will not be required to pay for a cancelled shift if they were unable to provide work because of fire, lightning, power failure, storms or similar causes beyond their control; or the employee’s work is weather-dependent and the employer is unable to provide work for weather-related reasons.
- Three hour rule – employers will not be required to pay wages for three hours for a shift that lasts fewer than three hours if they were unable to provide work because of fire, lightning, power failure, storms or similar causes beyond their control.
- Right to refuse – employees cannot refuse a shift if the reason that the employer is asking them to work or be on call is to deal with an emergency, remedy or reduce a threat to public safety, or ensure the continued delivery of essential public services, regardless of who delivers those services.
- On-call pay – employers will not be required to pay wages for three hours for an on-call shift if the employee is on call to ensure the continued delivery of essential public services, regardless of who delivers those services and the employee was not required to work.
How is the term "emergency" defined under the exception to the right to refuse rules?
The term "emergency" in the exception is defined as 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.
What does the "essential public services, regardless of who delivers those services" exception to the right to refuse and on-call pay rules mean?
The phrase "essential public services" is currently interpreted to refer to services that are provided to the public at large and which may be considered "essential" because they are necessary for an employer to prevent situations that could result in, for example: danger to life, health or safety; the destruction or serious deterioration of machinery, equipment or premises; serious environmental damage; or disruption of the administration of the courts.
This exception would apply "regardless of who delivers those essential public services. As such, this provision could apply to employees who work for private companies that deliver public services, for example, privately run ambulance or road-clearing services, or a business that provides food to hospitals.
Domestic or sexual violence leave
What is the new leave for victims of domestic or sexual violence?
A new domestic or sexual violence leave has been established.
For employees that have been employed for at least 13 consecutive weeks, the new legislation provides up to 10 individual days of leave and up to 15 weeks of job protected leave when an employee or their child has experienced or is threatened with domestic or sexual violence. The first five days of leave each calendar year would be paid, the rest would be unpaid.
The new legislation also requires employers to put mechanisms in place to protect the confidentiality of records they receive or produce in relation to an employee taking domestic or sexual violence leave. These leave provision comes into force on January 1, 2018.
Family medical leave
Why are you increasing family medical leave?
This change mirrors the recent changes to the Federal Employment Insurance Act and would align the Employment Standards Act with the available Employment Insurance benefits for employees. Family Medical Leave would increase from up to 8 weeks in a 26 week period to up to 28 weeks in a 52 week period.
What changes have you made to who can sign a certificate necessary to take Family Medical Leave, stating that the family member has a serious medical condition with a significant risk of death within 26 weeks?
A qualified medical practitioner who may issue a certificate necessary to take family medical Leave is now a physician or a nurse practitioner.
Critically ill child care leave / Critical illness leave
What changes are being made to critically ill child care leave?
This change mirrors the recent changes to the Federal Employment Insurance Act and would align the Employment Standards Act with the available Employment Insurance benefits for employees.
Formerly, Ontario offered up to 37 weeks unpaid leave for a parent to provide care or support to their critically ill child. The new legislation renames this section ‘Critical illness leave’ and expands it to include a new leave that allows 17 weeks of leave for an employee to provide care or support to a critically ill adult family member. It also expands the list of family members for whom an employee could take the leave to include critically ill children of other family members.
Crime-related child death or disappearance leave
What changes are being made to crime-related child death or disappearance leave?
Formerly, Ontario offered up to 104 weeks unpaid leave for a crime-related death of a child and up to 52 weeks leave for the crime-related disappearance of a child. The new legislation extends this leave of absence to all child deaths, regardless of the reason, and it extends the available duration of the crime-related disappearance of a child leave to 104 weeks.
Pregnancy and parental leave
What changes have been made to pregnancy and parental leave?
Pregnancy leave:
- The entitlement to a six week extension of pregnancy leave in certain circumstances, where the employee has a miscarriage or still-birth, is increased to 12 weeks.
- This change would come into force on January 1, 2018.
- An employee who started pregnancy leave before January 1, 2018 would be subject to the current entitlement (6 weeks).
Parental leave:
- The entitlement to parental leave is increased from 35 weeks to 61 weeks for employees who take pregnancy leave, and from 37 weeks to 63 weeks otherwise to align with changes to Employment Insurance benefits.
- Section 48 is amended to provide that a parental leave may begin no later than 78 weeks after the child is born or comes into the employee’s custody, care and control for the first time. This is in alignment with Employment Insurance as well.
- This change would come into force on the later of December 3, 2017 (the date that Employment Insurance benefits changes will be effective) or royal assent.
- An employee who started parental leave before the coming into force date would be subject to the current entitlement.
What changes have you made to who can sign a medical certificate for pregnancy leave?
A qualified medical practitioner who may issue a certificate related to pregnancy leave, stating that the employee cannot work due to complications caused by pregnancy, the expected due date, and/or the actual date of birth, stillbirth or miscarriage is a physician, nurse practitioner or a midwife.
Vacation
What changes have been made?
The Fair Workplaces, Better Jobs Act increases paid vacation from two weeks to three weeks for employees who have 5 years or more of service with the same employer.
Part-time casual wage parity
What changes have been made with regard to equal pay for casual, part-time, temporary and seasonal employees?
The changes provide wage parity for casual, part-time, temporary and seasonal workers performing substantially the same work as full time employees for the same employer and it would require employers to provide a written explanation to the employee who expresses that they are not receiving wage parity as compared to full-time employees and the employer disagrees.
Currently, the ESA prohibits an employer from paying an employee of one sex at a rate of pay less than the rate paid to an employee of the other sex if they perform substantially the same kind of work, their performance requires substantially the same skill, effort and responsibility and their work is performed under similar working conditions.
There would be exceptions to the requirement for equal wages where a wage difference is based on:
- Seniority system
- Merit system
- Systems that determine pay by quantity or quality of production
- Other factors (sex and employment status do not qualify as exceptions to this requirement)
The new legislation requires the Minister of Labour to start a review of equal pay provisions for casual, part-time, temporary and seasonal employees by April 1, 2021.
Will seniority systems that provide for different rates of pay for casual, part-time, temporary and seasonal workers based on the accumulated number of hours worked be an exception to the equal pay provisions?
Yes. Employers are able to use seniority systems that are based on accumulated hours to support pay differentials.
Eligible employees have the right to take up to 10 days of job-protected leave each calendar year. The first two days of the leave in each calendar year are paid if the employee has been employed for one week or longer. The rest is unpaid.
Does an employee need to tell their employer if they are taking the leave?
Yes. The employee needs to let the employer know before they start the leave (or, if this is not feasible, as soon as possible after starting the leave). It does not have to be in writing.
Can an employer ask for proof that an employee is allowed to take the leave?
Employers can require an employee who takes personal emergency leave to provide evidence reasonable in the circumstances that the employee was entitled to the leave. However, employers cannot require employees to provide a note from a physician, registered nurse or psychologist.