The Ontario Employment Standards Act 2000 (ESA) is a legislation used to regulate employment in Ontario. It applies to most workplaces in the province with some exceptions, such as federal employees and some other special categories.
Who is not covered by the Ontario Employment Standards Act?
The Ontario Employment Standards Act does not cover the following industries and jobs:
- Politicians, judges, religious officials, or elected trade union officials
- Police officers (But Part XVI of the ESA Ontario that covers lie detector sections does apply)
- People participating in the Community Participation Program under the Ontario Works program
- Inmates participating in work or rehabilitation programs
- Young offenders carrying out work as part of a sentence or court order
- Post-secondary students working in co-operative or work experience programs approved by their college or university
- Secondary school students employed as part of co-operative programs authorized by their school board
- Employees in federally regulated industries, such as airlines, banks, post offices, etc.
ESA Ontario also contains special rules and exemptions for job categories, such as manufacturing, construction, landscaping, hospitality services, agriculture, etc., and other industries and jobs, such as student employees, homeworkers, embalmers, and funeral directors.
What is the purpose of the Ontario Employment Standards Act?
The Employment Standards Act Ontario sets down the minimum standards for basic conditions of employment, including wages, leaves of absence, work hours, overtime, and notice and severance pay obligations upon termination. It also lays out the legal rights and duties of employers and employees.
The minimum standards set down in the ESA cannot be ignored by employers. They apply to your workplace even if you don’t include them in your employment contracts.
However, the ESA standards are required as a basic minimum. If you wish to do so, you are free to provide more benefits and rights to your employees.
It is important that employers know the provisions of ESA. Ontario employers covered by the ESA must provide a copy of the Employment Standards Poster to their workforce. It can be downloaded for free at the Ministry of Labour website.
What are some major areas of employment covered under ESA Ontario?
Here are some important subjects covered by Ontario Employment Standards Act.
Hours of work
There is a daily and weekly limit on the maximum number of work hours. The daily limit is eight hours or the number of hours in an established regular workday, if it is more than eight.
The weekly limit is 48 hours. Both the daily and weekly limit can be exceeded only if there is an electronic or written agreement between the employee and employer. However, such an agreement to work additional hours does not exempt an employer from paying overtime wages where overtime hours are worked.
For such an agreement to be valid, the employer must provide the most recent information sheet for employees about hours of work and overtime pay created by the Director of Employment Standards. In the agreement, the employee must acknowledge receipt of the information sheet.
An overtime agreement can be cancelled if the employee gives two weeks’ notice in writing or electronically. The employer can cancel the agreement by providing reasonable notice.
Please note that while commuting time is not included in work hours, work-related travel and training is.
Employees must have at least 11 consecutive hours off work each day. This daily rest requirement holds even if it has been agreed that the employee’s hours of work will exceed the daily or weekly limit. But it does not apply to employees on call.
Unless they are working a split shift, your employees must have at least eight hours off work between shifts. But if the total time worked on both shifts is not more than 13 hours, then this rule does not apply. An employee and employer can agree in writing or electronically the employee will get less than eight hours off work between shifts.
Employees must receive at least 24 consecutive hours off work in each work week or 48 consecutive hours off work in every period of two consecutive work weeks. These rules may be altered in exceptional circumstances.
What is the 3-hour rule in Ontario?
Under the 3-hour rule, if an employee is required by the employer to come into work for less than three hours, the employer must pay the employee for 3 hours at minimum. But this rule only applies if the employee regularly works more than three hours every day and is available on that day, too, to work more than 3 hours.
Are 15-minute breaks required by law in Ontario?
Under the Ontario Employment Standards Act, an employee must get a 30-minute meal break in a five-hour shift. But if both parties agree, the 30-minute break can also be divided into two 15-minute breaks away from work within that five-hour shift.
Minimum wage is the lowest wage an employer can legally pay their staff. The employer is free to pay more but cannot pay less than the minimum wage set down in Ontario’s Employment Standards Act.
Employees eligible for minimum wage include full-time, part-time, casual employees or those paid an hourly rate, commission, piece rate, flat rate, or salary.
While a general minimum wage applies to most workers, it is different for students, homeworkers, and hunting and fishing guides. Some industries are exempt from the minimum wage provisions of ESA Ontario.
The minimum wage in Ontario increased on January 1, 2022. The general minimum wage in Ontario is now $15 per hour. Previously, the minimum wage in Ontario was $14.35 per hour. The new general minimum wage applies to bartenders and alcohol servers as well.
Vacation time and pay
Most employees are entitled to two weeks of vacation time after every 12-month vacation entitlement year. Employees with five or more years of employment earn three weeks of vacation time.
Employees must be paid at least 4% or 6% of their gross wages as vacation pay, depending on their years of service.
An employee’s job contract or a collective agreement may provide a higher benefit or right when it comes to vacation time and/or pay.
Payment of wages
All employees must be paid wages earned in a pay period on a regular, recurring pay day. They must receive a pay statement that clearly mentions the pay period, gross wages, net wages, deductions on or before their pay day. The wages can be paid via cash, cheque, or direct deposit into the employee’s bank account.
Ontario has nine public holidays:
- New Year’s Day
- Family Day
- Good Friday
- Victoria Day
- Canada Day
- Labour Day
- Thanksgiving Day
- Christmas Day
- Boxing Day
Remembrance Day (November 11) is not a statutory holiday in Ontario, though some employers still give their staff the day off. Civic Holiday (the first Monday of August) is an optional holiday for provincially regulated employers. Country-wide companies should note that Ontario is the only province where Boxing Day is a statutory holiday.
An employee is generally entitled to take all statutory holidays off work and be paid public holiday pay.
Leaves of Absence
Employees in Ontario are entitled to several types of unpaid, job-protected leaves of absence provided they meet the eligibility criteria.
Employers can’t terminate, punish, or threaten employees for using any of these leaves. Generally, an employee must inform the employer before starting any leave available to them under the Ontario Employment Standards Act. They may be asked to give evidence “reasonable in the circumstances” that shows they are eligible for a particular leave.
Pregnancy and parental leave
These are two separate leaves. Eligible employees who are pregnant can take pregnancy leave of up to 17 weeks of unpaid time off work.
Birth mothers are entitled to up to 61 weeks of leave. They may take both pregnancy and parental leave. Birth mothers who don’t take pregnancy leave and all other new parents are entitled to up to 63 weeks parental leave.
Under the ESA Ontario, both leaves are unpaid though job protected.
However, eligible employees get maternity and/or parental benefits under the federal Employment Insurance Act for the period they are taking an ESA pregnancy or parental leave.
The employees also have a right to benefits offered by their employer, such as pension plans, life insurance plans, extended health plans and dental plans.
They also continue to earn credits toward length of employment, length of service, and seniority during the period of leave.
Typically, once the leave is over the employee is entitled to the same job they had before or an equivalent job, if the old job no longer exists.
In both cases, the employee’s remuneration must match their pay before the leave.
Ontario amended the ESA and introduced paid sick leave for the duration of the pandemic. The Ontario COVID-19 Worker Income Protection Benefit came into force on April 29, 2021.
Eligible employees can now utilize up to three days of paid infectious disease emergency leave for certain reasons related to COVID-19. Eligible employers whose employees have taken this leave have 120 days from the date they paid the employee to submit their application for reimbursement to the Workplace Safety and Insurance Board.
The paid infectious disease emergency leave is retroactive to April 19, 2021, and will be in effect until July 31, 2022.
Employees can also take up to three unpaid, job-protected sick leave days every year once they have worked for an employer for at least two consecutive weeks. But if a job contract, including a collective agreement, offers a higher benefit or right than the standard sick leave under the ESA, then the terms of the contract apply.
Unpaid infectious disease emergency leave
Eligible employees can take an unpaid, job-protected infectious disease emergency leave due to certain reasons related to a designated infectious disease.
At this point, the only infectious disease for which this leave may be availed is COVID-19.
The leave entitlements for COVID-19 are retroactive to January 25, 2020, with no end date. An employee has the right to this unpaid leave if they meet certain criteria.
Under the Ontario Employment Standards Act, employees can avail of up to two days of unpaid job-protected bereavement leave each calendar year due to the death of certain family members.
Employees become eligible for bereavement leave after working for an employer for at least two consecutive weeks.
Family responsibility leave
Employees may take up to three days of unpaid job-protected leave each calendar year because of an illness, injury, medical emergency, or urgent matter relating to certain relatives. For some occupations, special rules may apply.
The family responsibility leave can be availed after an employee has worked for an employer for at least two consecutive weeks.
Family caregiver leave
Family caregiver leave is an unpaid, job-protected leave of up to eight weeks per calendar year per specified family member. All employees covered by ESA Ontario may be entitled to this leave.
An employee may take this leave to care for certain family members provided a qualified health practitioner has issued a certificate saying that they have a serious medical condition. The certificate need not specify the medical condition.
The employee must submit a medical certificate to avail this leave.
Family medical leave
This is an unpaid, job-protected leave of up to 28 weeks in a 52-week period. It may be taken to provide care or support to certain family members and people who are like family. For the employee to be eligible for the leave, a qualified health practitioner should have issued a certificate stating that the said family member has a serious medical condition with a high risk of death within a period of 26 weeks.
Under the federal Employment Insurance Act, 26 weeks of employment insurance benefits may be paid to eligible staff who are on a family medical leave.
The employee must submit a medical certificate to avail this leave.
Critical illness leave
Critical illness leave is unpaid job-protected leave of absence of up to 37 weeks to care for a critically ill minor child, or 17 weeks for a critically ill adult within a 52-week period.
The requirement for a medical certificate applies. The certificate should be issued by a qualified health practitioner and confirm the critical illness of the adult or minor child concerned and specify the period for which they require the care or support.
The medical certificate requirement is non-negotiable.
Employees covered by the Employment Standards Act, 2000, who have worked for their employers for at least six consecutive months have the right to critical illness leave.
Employees who take the critical illness leave may be eligible for Employment Insurance (EI) special benefits for caregivers of critically ill minor children who are family members for up to 35 weeks. The benefit duration for family members of critically ill adults is up to 15 weeks.
Organ donor leave
This is an unpaid, job-protected leave of up to 13 weeks, for undergoing surgery to donate all or part of certain organs to a person. It can be extended in some cases up to an additional 13 weeks.
Reservist employees deployed to an international operation or one within Canada that would be assisting in an emergency, or its aftermath, are entitled to unpaid leave for the duration of the said operation.
Bill 88, the Working for Workers Act, 2022 amended the reservist leave to state that employees participating in Canadian Armed Forces military skills training will be eligible for this leave as well. It also shortened the length of service required to commence this job-protected leave to three consecutive months from six consecutive months.
Child death leave
Child death leave is an unpaid, job-protected leave of absence. It provides up to 104 weeks of time off in case of the death of a child.
If an employee has been employed for at least six consecutive months, they are entitled to child death leave.
The leave must be taken in a single period and within the 105-week period that begins in the week the child died.
An employer may require reasonable evidence of the employee’s entitlement to the leave.
Crime-related child disappearance leave
This, too, is an unpaid job-protected leave of absence. It provides up to 104 weeks in case of a crime-related disappearance of a child.
The employee must have been employed for at least six consecutive months to be able to avail this leave. An employer may require reasonable evidence of the employee’s entitlement to the leave.
The leave must be taken in a single period and within the 105-week period that begins in the week the child died.
The employee may also be eligible for the Federal Income Support for Parents of Murdered or Missing Children grant.
The leave entitlement ends if…
- It no longer seems probable that the child disappeared because of a crime.
- The child is found within the 104-week period. The employee is entitled to stay on leave for 14 days after the day the child is found.
- The child is found dead. The employee may remain on leave until the end of the week in which the child’s body is found, after which they can avail of the unpaid job-protected child death leave of up to 104 weeks.
Domestic or sexual violence leave
Domestic or sexual violence leave is a job-protected leave of absence. Eligible employees can take up to 10 days and 15 weeks of time off in a calendar year for when an employee or an employee’s child has been threatened with or subjected to domestic or sexual violence. Only the first five days of the leave are paid.
An employer may request for evidence reasonable in the circumstances.
The affected employee can either avail of the domestic and sexual violence leave as a 10-day period (as individual days or in any combination for up to 10 days) or a 15-week period (taken continuously or in parts).
For both, the employee has to give notice to the employer every time they avail of the leave.
The requirement for notice applies to all leaves, including bereavement leave, family responsibility leave, family caregiver leave, critical illness leave.
Termination Notice and Pay
When terminating the employment of an employee who has worked continuously for three months, the employer must give the employee either a written notice of termination, termination pay or a combination (that equals the length of notice the employee is entitled to get).
Are there any exceptions to this rule?
Some employees may not be entitled to notice of termination or termination pay under the ESA. For instance, employees who are guilty of intentional misconduct, disobedience, or wilful neglect of duty that is serious. Construction staff, employees who turn down an offer of reasonable alternative employment and those employed for less than three months are some other examples.
Do I have to provide a reason for terminating an employee?
Under the ESA, an employer is not required to give a reason for a without cause termination, but reasons must be provided in case of a with cause termination. Employees cannot be terminated for exercising their rights under the ESA or turning down work in excess of the daily or weekly work hour limit or for taking a statutory leave of absence they are entitled to.
When an employee is terminated, they may be entitled to severance pay in addition to notice of termination or pay in-lieu thereof. To be eligible for severance pay, an employee must have worked for the employer for five or more years, and either the employer has a global payroll of at least $2.5 million or the employer ended the employment of 50 or more staff members in a six-month period because all or part of the business permanently closed.
What temporary ESA rules introduced during the pandemic are still in force?
On May 29, 2020, the government made a temporary amendment to the Ontario Employment Standards Act – Regulation 228/20: Infectious Disease Emergency Leave. The changes introduced by the regulation apply during the COVID-19 period which is from March 1, 2020, to July 30, 2022. These are as follows:
- All non-unionized employees whose employer has temporarily reduced or eliminated their hours of work for reasons related to COVID-19 will be considered to be on a job-protected unpaid Infectious Disease Emergency Leave.
- All non-unionized employees who’ve had their work hours or wages reduced due to the pandemic won’t be considered temporarily laid off. They will be deemed to be on an Infectious Disease Emergency Leave.
- A temporary reduction or elimination of an employee’s work hours or wages due to COVID-19-related reasons won’t be deemed a constructive dismissal.
But from July 31, 2022, the usual ESA rules around constructive dismissal and temporary layoff will resume.
What new amendments have been added to the Ontario Employment Standards Act through Bill 27?
Bill 27, Working for Workers Act, 2021, which proposes major amendments to the Ontario Employment Standards Act, 2000 (ESA), passed through the provincial legislature on November 30. It received Royal Assent on December 2, 2021. Key changes include:
Right to disconnect
Employers with 25 or more staff must have a written policy providing employees the right to disconnect from work. The Act defines disconnecting from work as “not engaging in work-related communications, including emails, telephone calls, video calls or the sending or reviewing of other messages, so as to be free from the performance of work.”
Prohibiting non-compete clauses in job contracts
Non-compete agreements in work contracts restrict workers from taking up jobs with another business in the same industry for a specified time after they resign. The Act bans non-compete agreements for most employees. But it allows for exceptions, such as in the case of the sale of a business or part of a business. It also exempts executives from the ban on non-compete agreements.
Licensing requirement for recruiters and temporary help agencies
The Working for Workers Act, 2021 introduces licensing requirements for temporary help agencies and recruiters. It prohibits employers from knowingly availing the services of an unlicensed temporary help agency or recruiter. It also bans a recruiter or employer from taking fees from a foreign national for their recruitment or employment. Those applying for a recruiter license would have to submit a statement that they are aware of this restriction. Non-compliance with this requirement could invite fines and even rejection of the license application.
Lifting barriers for internationally trained professionals
The Act lifts Canadian work experience requirements for professional registration and licensing unless an exemption is granted. It also limits duplication of official language proficiency testing. Internationally trained professionals would no longer have to take multiple language proficiency tests for purposes of immigration and professional licensing.
Washroom access for truck drivers and delivery workers
The Act gives couriers, truck drivers, and people who deliver food the right to washroom access at the workplaces where they deliver or pick up delivery.
WSIB financial relief for businesses
The Workplace Safety and Insurance Board (WSIB) in Ontario has already reduced premium rates for 2022 by $168 million. The Act gives a further financial boost for employers by allowing for a portion of the WSIB’s current reserve funds to be distributed to safe employers.
For more details on the changes brought in by Bill 27, please refer to our blog on the Working for Workers Act, 2021.
What new amendments were made to ESA Ontario through Bill 88?
Business and information technology consultants
The Working for Workers Act, 2022 amended Section 3 of the ESA to add who is outside the purview of the legislation – namely certain business consultants and information technology consultants. The Act defines business consultants and information technology consultants and states they are only exempt from the ESA if certain requirements are met. These new exemptions will come into force on January 1, 2023.
Electronic monitoring policy
The new Part XI.1 of the Act imposes a requirement on employers with 25 or more employees to have a written policy with respect to the electronic monitoring of employees. The electronic monitoring policy must specifically state if the employer is electronically monitoring its employees. If the employer is electronically monitoring employees, the policy must provide details of how and in what circumstances the employer is monitoring staff, as well as the purposes for which information obtained through electronic monitoring may be used.
Employers with 25 or more employees on January 1st of any given year must have a written policy on electronic monitoring of employees by March 1st of that year. The deadline to comply with the policy for 2022 is October 11.
Creation of the Digital Platform Workers’ Rights Act, 2022 (DPWRA)
A major way the Working for Workers Act, 2022 has increased rights for Ontario workers is through the enactment of the Digital Platform Workers’ Rights Act, 2022. The DPWRA defines digital platform work as “the provision for payment ride share, delivery, courier or other prescribed services by workers who are offered work assignments by an operator through the use of a digital platform.” This new Act gives digital platform workers more rights under the ESA, such as the right to information, the right to a reoccurring pay period and pay day, the right to minimum wage, among others.
The DPWRA will come into force on a day to be named by proclamation of the Lieutenant Governor, which has not yet been established. For more details on the changes brought in by Bill 88, please refer to our blog on the Working for Workers Act, 2022.
Are there any other laws besides ESA Ontario that affect the workplace?
Yes. Other important workplace-related statutes include the Occupational Health and Safety Act, the Workplace Safety and Insurance Act, 1997, the Labour Relations Act, 1995, the Pay Equity Act, and the Ontario Human Rights Code.
Reposted from Peninsula Canada