Amendments to the Employment Standards Act (in Force September, 2001)

Introduction
Ontario's new Employment Standards Act, 2000 came into force on September 4, 2001. There are several changes to the legislation which may effect you. We have set these out below.

Hours of Work
The maximum hours of work under the Employment Standards Act continues to be set at 8 working hours per day and 48 working hours per week. Under the old Employment Standards Act, an employer had to apply to the Director of Employment Standards for a permit to exceed these specified maximums. Under the new Employment Standards Act, this permit systems is eliminated and an employer may allow an employee to work hours in excess of the maximum (up to 60 hours), if the employee agrees in writing, without the employer having to get approval from the Director.

Overtime
Overtime of one and one-half times an employee's rate of pay will continue to be payable after 44 hours' work per week. However, under the new Act, employees may consent to have their work hours averaged over a period of up to four weeks for the purpose of determining their entitlement to overtime. The requirement under the old Act that such "averaging arrangements" be approved by the Director of Employment Standards has been eliminated.
Under an "averaging agreement," if an employee works 60 hours one week, but only 20 hours the next, there would be no entitlement to overtime since he or she would have worked an average of only 40 hours each week. In order to be valid, an "averaging agreement" must include an expiry date that does not exceed two years. The agreement cannot be revoked before the expiry date except with the consent of both parties.

With respect to compensation for overtime, employees in Ontario now have the option of receiving paid time off in lieu of overtime pay.

If an employee's employment ends before the paid time off is taken, the employer must pay out the overtime hours the employee worked.

Vacation and Vacation Pay
The old Act provided for a minimum standard of two weeks' vacation per year, after 12 months of employment with the same employer. The employer was required to schedule the vacation in one two-week period or two one-week periods within ten months of the period for which the vacation was given.

Under the new Act, the employer may permit, at the written request of the employee, the scheduling of vacation in daily, rather than weekly, increments. The amendments provide that, where an employee does not take his or her vacation in complete weeks, the employee's vacation entitlement will be based on the number of days in the employee's regular workweek; if the employee does not have a regular workweek, entitlement will be based on the average number of days the employee worked per week in the four months immediately preceding the first day of the vacation.

Public Holidays
Under the old Act, where a public holiday fell on a working day for an employee, the employer could substitute another working day for the public holiday, but only with the employee's agreement. Moreover, where the employee was entitled to the holiday with pay, and worked on the holiday, the employer had to pay the employee his or her regular wages plus premium pay of not less than one and one-half times his or her regular rate. Under the new Act, employers and employees have the option of agreeing to either: (a) regular pay for the hours worked on the public holiday and a substitute day off with pay; or (b) time and a half for the hours worked on the holiday, plus a regular day's pay, but no substitute day off.

In addition, most of the old qualifying conditions for receiving the public holiday with pay are now eliminated under the new Act. Employees will lose entitlement to the public holiday with pay only if they fail, without reasonable cause, to work their regularly scheduled day of work before and after the holiday, or, if they have agreed to work on the public holiday, they perform none of the work, without reasonable cause. If employees agree to work on the public holiday and without reasonable cause perform some, but not all of the work, they are entitled to premium pay on a prorated basis.

Rest Periods
Under the old Act, mandatory weekly rest periods applied only to specified employees, for example, retail workers, who were entitled to at least thirty-six consecutive hours of rest in every seven-day period. In addition, under the old One Day's Rest in Seven Act, employees working at hotels, restaurants, or cafes in cities with a population of at least 10,000 were been entitled to 24 consecutive hours of rest every seven days.

The new Act repeals the One Day's Rest in Seven Act and provides daily and weekly rest periods for all employees. In this regard, employees must be off work for at least eleven consecutive hours every 24 hours. Shifts must be scheduled at least eight hours apart, unless the total time worked on successive shifts does not exceed 13 hours, or the employee and employer agree otherwise. In addition, employees are entitled to at least 24 consecutive hours off work every week, or at least 48 consecutive

Unpaid Emergency Leave
The new Act creates an emergency leave entitlement for employees in workplaces with 50 or more employees that provides such employees with up to 10 days of unpaid, job-protected leave per year for specified family or medical reasons.

The leave will apply to a personal illness, to a family crisis, and to the illness or death of an employee's close relation, including spouse or same-sex partner, child, step-child, parent, step-parent, parent of spouse or same-sex partner, or any relative dependent upon the employee for care or assistance.

Pregnancy and Prenatal Leave
In order to conform with amendments to the federal Employment Insurance Act, the new Act extends the job-protected parental leave from 18 weeks to 35 weeks if the parent also takes a pregnancy leave, or 37 weeks if the individual did not take pregnancy leave. The parental leave is available to both parents, and the leave can be taken simultaneously or consecutively. The parental leave provisions apply to natural parents or "other new parents." Natural mothers are also entitled up to 17 weeks of job-protected pregnancy leave which is separate from parental leave. The parental leave provisions took effect on December 21, 2000.

Posting Requirements
Employers are required to post Ministry of Labour information outlining the rights of employees and obligations of employers under the Employment Standards Act. Where English is not the first language of a majority of employees in the workplace, the employer must make inquiries regarding the availability of translated copies.

Revision Date: OCT. 30, 2001

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