Bill 148: Changes to the Employment Standards Act, Carole McAfee Wallace Fernandes Hearn LLP Toronto

Transcription

1 Bill 148: Changes to the Employment Standards Act, 2000 Carole McAfee Wallace Fernandes Hearn LLP Toronto

2 Bill 148, the Fair Workplaces, Better Jobs Act, 2017 was passed, effective November 27, 2017 Changes to the Employment Standards Act, 2000 ( ESA ) and their effective dates Overview of the changes and the various effective dates Steps employers must take in order be in compliance

3 Effective immediately: New Employee misclassification offence (s. 5.1) An employer is prohibited from treating employees as if they are not employees The employer bears the burden of proving that any independent contractor hired is not in fact an employee under the ESA While this has always been the law, as a result of Bill 148 it is now an express prohibition

4 Effective December 3, 2017 Parental Leave Increased from 35 weeks to 61 weeks for employees who take pregnancy leave Increased from 37 weeks to 63 weeks otherwise This amendment is to mirror the recent amendments to the Employment Insurance Act, which allow for an extended period of parental leave benefits Extended leave available if the child is born, or comes into the custody, care and control of the parent, after December 3, 2017; not available to those currently on parental leave Critical Illness Leave (s. 49.4) Replaces critically ill child care leave An employee who has been employed for at least 6 consecutive months is entitled to take an unpaid leave to provide care and support to any critically ill (defined) family member (also defined) The leave is up to 37 weeks for a critically ill child (under 18) and 17 weeks for a critically ill adult This leave corresponds with the new EI entitlement to Family Caregiver Benefit for Adults

5 Effective January 1, 2018 Minimum wage increases to $14 an hour Paid vacation increases from 2 weeks to 3 weeks, and 6% of wages, after an employee has reached 5 years of service Active and inactive employment is included in calculating length of service (this is not new) Not retroactive increase does not apply to any vacation entitlement year that ended before December 31, 2017 Public Holiday Pay is now calculated based on the actual days worked in the previous pay period

6 Leaves of Absence Personal Emergency Leave (s. 50) After being employed for one week, employee is allowed up to 10 days off for personal illness, injury or medical emergency, or death, illness, injury or medical emergency or an urgent matter with respect to certain family members (defined), in each calendar year The first two days are paid, the remaining 8 days are unpaid If the employee has been employed less than one week, the employee is not entitled to paid days; once employed for one week or longer, the employee is entitled to paid days, and any unpaid days taken are counted towards the total of 10 days This leave is now available in all workplaces, not just those with 50 or more employees Employer is no longer permitted to require a certificate from a qualified health practitioner, an employer does have the right to require an employee provide evidence reasonable in the circumstances that he/she is entitled to the leave

7 Family Medical Leave (s. 49.1) This unpaid leave of absence is increased from 8 weeks to up to 28 weeks, to care for an individual described in subsection (3), which sets out an expanded definition of family members, if a qualified health practitioner (new definition) issues a certificate stating that the individual has a serious medical condition with a significant risk of death within a period of 26 weeks Child Death Leave (s. 49.5) Replaces crime-related child death or disappearance leave After 6 consecutive months of employment, an employee is entitled to an unpaid leave of up to 104 weeks if a child of the employee dies

8 Crime-Related Child Disappearance Leave (s. 49.6) After 6 consecutive months of employment, an employee is entitled to an unpaid leave of up to 104 weeks (was previously 52 weeks) in the event that the employee s child (under 18 years of age) disappears as a result of a crime Domestic or Sexual Violence Leave (s. 49.7) After 13 consecutive weeks of employment, an employee is entitled to a leave of absence if the employee or the employee s child (under 18 years of age) experiences domestic or sexual violence, or threat of same, and leave is taken to:» Seek medical attention, access victim services, obtain counseling, retain or seek legal assistance, and prepare for a legal proceeding The leave is up to 10 days in each calendar year (may be taken one day at a time), and up to 15 weeks in each calendar year (must be taken in full weeks) The first 5 days are paid

9 Temporary Help Agencies (s ) A temporary help agency must provide an assignment employee with one week s notice, or pay in lieu thereof, if the assignment had an estimated term of three months or more when offered, and it is terminated before the end of its estimated term, unless another assignment of at least one week, is offered to the employee Contravention of ESA (s. 113) Penalties for contravention shall be determined in accordance with the regulations, which permit the establishment of a range of penalties, or different types of penalties (administrative monetary penalties) The Director of Employment Standards can publish information, including on the internet, about an employer s contravention of the ESA, including the date and description of the contravention, the name of any individual who has been issued a penalty, and the amount of the penalty

10 Effective April 1, 2018 Equal Pay for Equal Work Expanded to provide that casual, part-time, temporary or seasonal employees be paid the same as full-time employees No employer shall pay an employee at a rate of pay less than the rate paid to another employee because of a difference in status if: they perform substantially the same kind of work in the same establishment; their performance requires substantially the same skill effort, and responsibility, and the work is performed under similar working conditions Substantially the same is defined to mean substantially the same but not necessarily identical

11 An employee who believes that their rate of pay does not comply with this provision can request a review of their rate of pay from the employer and the employer shall adjust the pay or, if the employee disagrees with the employee, the employer must respond to the employee in writing setting out the reason for the disagreement An employer cannot reduce an employee s rate of pay in order to achieve compliance This provision does not apply when the difference in the rate of pay is due to a seniority system, merit system, a system that measures earnings by quantity or quality of production, or any other factor other than sex or employment status

12 Effective January 1, 2019 Minimum wage increases to $15 an hour and is subject to an annual inflation adjustment on October 1st of each year, starting in 2019 Changes to Schedule or Work Location (Part VII.1) An employee with at least three months of service can request changes to his/her schedule or work location The employer must discuss the request with the employee and notify the employee of its decision within a reasonable period of time If the change is granted, the employer must provide the date the change will take effect and its duration, and if the request is denied, the employer must provide the reasons for the denial

13 Scheduling Protections (Part VII.2) If an employee who regularly works more than three hours in a day attends work but works less than three hours, the employer shall pay the employee for three hours This does not apply if the reason the employer is unable to provide work for the employee is because of fire, lightning, power failure, storms or similar causes beyond the employer s control If an employee is on call and is not required to work, or is required to work but works less than three hours, the employer shall pay the employee for three hours, unless the employee was to be on call for the purpose of providing essential public services An employee can refuse an employer s request or demand to work, or be on call, on a day they were not scheduled to work or be on call, if the employer s request or demand is made less than 96 hours before the commencement of the work or being on call, unless the request is due to an emergency or to deliver essential public services If an employer cancels the employee s scheduled day of work or on call period, within 48 hours before the start time, the employer shall pay the employee for three hours of work

14 Next Steps for Employers Conduct audit to determine which employees may be entitled to: Increase in minimum wage Additional week of vacation do you need to change your practice for requesting/approving vacation to accommodate an increase in vacation time that will be taken? Review the status of your independent contractors to ensure they are not mislabeled Review all workplace policies and procedures to ensure they comply with these changes Review form of employment agreements to ensure compliance i.e. sick days, vacation entitlements Consider scheduling practices to determine risk of additional costs due to three hour rule and consider changes to scheduling practices Review status of part-time, temporary, casual and seasonal employees and consider whether there are any pay equity issues which may result in pay increases Consider planning required to cover longer absences for those employees who may take extended parental leave

15 Questions? Carole McAfee Wallace