ESA Changes Impacting Your Workplace – Bill 47 Update to ESA …and other upcoming changes

Bill 148 took effect partially in 2018, with aspects planned to come into force in 2019. Bill 47, Making Ontario Open For Business Act, 2018 was introduced on October 23, 2018 by the Ontario Government. On November 21, 2018, Bill 47 passed third reading and received Royal Assent. The Bill comes into force on January 1, 2019.

Bill 47 has amended or entirely repealed some of the changes that Bill 148 brought to Ontario. Here is a summary of the changes so you can plan for necessary changes to processes or policies within your organization:

Minimum Wage Increase

  • Increase to $14/hour January 1, 2018
  • January 2019 increase to minimum wage was cancelled
  • Adjustments to wages restart as of October 1, 2020 (increases will be tied to inflation).

Equal Pay for Equal Work

  • Eliminating the requirement that was legislated by Bill 148, with Bill 47 an employer will not be required to provide equal pay based on employment status to part-time, casual and temporary employees.

Temporary Help Agencies

  • Eliminating the requirement that was legislated by Bill 148, with Bill 47 an employee from an agency does not have to be paid the same as the client’s employees.

Paid Vacation – January 1, 2018

  • (No Change) Employees with more than five (5) years’ service with an employer are entitled to three (3) weeks’ vacation.

Public Holiday Pay Calculation (July 1, 2018)

  • (No Change) The total amount of regular wages earned, and vacation pay payable to employee in four (4) week period before the work week in which the public holiday occurred, divided by 20.

Overtime Pay (January 1, 2018)

  • (No Change) No more ‘blended rate”
  • * Overtime rate must be based on the rate of pay for the work being performed during the overtime hours.

Personal Emergency Leave – January 1, 2019

  •  Eliminated the 2 paid and 8 unpaid Emergency Leave Days and replaced with the following
  • 8 unpaid job-protected leave days per calendar year:
    • 3 sick leave days (for personal illness, injury or medical emergency)
    • 3 family responsibility leave days (illness, injury, or medical emergency of selected family members)
    • 2 bereavement leave days (due to death of selected family members)
  • No prohibition to requesting a doctor’s certificate; employers can ask for evidence reasonable in the circumstances of entitlement to the leave.
  • When an employee takes a paid or unpaid day under their employment contract, it will be deemed that employee has also taken a statutory leave day (no stacking/pyramiding).
    • Note: if your policies or Collective Agreement and/or past practice do not allow for the use of sick days to care for sick/injured family members, under this legislation, you may need to provide three (3) unpaid days off in addition to your existing leave provision

Independent Contractor Classification – January 1, 2019

  • Employers must be sure that their Independent Contractors are actually Independent Contractors, not Dependent (i.e. employees). Penalties will follow for Employers who misclassify contractors.
  • Independent contractors can challenge their status, but the employer will no longer bear the burden of proving the individual is an independent contractor rather than an employee.

“Self Help” Requirement (January 1, 2018)

  • (No Change) Employees are no longer required to raise an alleged contravention of the ESA with their employer prior to filing a claim with the Ministry of Labour

Scheduling and Minimum Pay – January 1, 2019

  • When an employee is regularly scheduled to work more than three (3) hours a day, attends work, but works fewer than three (3) hours, that employee is entitled to:
    • A minimum three (3) hours pay at the employee’s regular rate of pay, OR
    • The amount earned for the time worked plus the employee’s regular rate for the remainder of the three (3) hours

Crown Employees – January 1, 2018

  • (No Change) Crown Employees are now included in the ESA Hours of Work, Overtime Pay, Minimum Wages, Public Holidays & Vacation with Pay provisions

Domestic or Sexual Violence Leave – January 1, 2018

  • (No Change) Employees with at least 13 weeks of service who meet requirements as laid out in ESA and for stated purposes laid out in ESA can take the following leave per calendar year:
    • Up to 10 days of leave (can be taken in full or half days); and,
    • Up to 15 weeks or leave (or partial weeks, consecutively or separately).
    • The first five (5) days of the leave must be paid.

Maternity & Parental Leave – January 1, 2018

  • Increase from 6 to 12 weeks for mothers who suffer a still-birth or miscarriage.
  • Parental Leave increase from 37 to 63 weeks for adoptive parent or spouse (who have not taken pregnancy leave).
  • Birth Mother combined leave extended from 12 months to 18 months.
  • Changes align with changes in Employment Insurance pay for maternity and parental leave.

As a result of these changes another review of policies and processes will be necessary for organizations. Some of the following areas need to be considered:

  • Policy manuals and procedures reviewed and updated;
    • Scheduling processes reviewed and adapted;
    • ESA Leaves updated;
  • Collective Agreements reviewed and updated (Collective Bargaining);
  • Pay structures and salary grids reviewed as a result of minimum wage not increasing; and
  • Leadership, payroll, finance and HR teams updated and trained.

Are you ready for these changes?

Pesce & Associates is working with clients to ensure they are compliant with Bill 47. If you want to be compliant, contact us now! We would be happy to make a presentation to your leadership team on the impact of the changes and/or make recommendations on what you need to consider.

Other Potential Upcoming Changes…

Bill 66, Restoring Ontario’s Competitiveness Act, also introduces new changes to the Employment Standards Act. Bill 66 was introduced on December 6, 2018 but has yet to be passed or receive Royal Assent; it is not yet law. It is expected this Bill will pass in 2019. Following are the main changes to the ESA resulting from Bill 66:

Currently an employer and employee can agree that an employee will work in excess of 48 hours per week, but not more than 60 hours per week. Employers also need to seek approval from the Director of Employment Standards for these agreements.

Repeal of 60 hour per week cap

  • An employer and their employee will be able to agree to a work schedule with any number of hours per week (no cap)
  • Employers will no longer be required to seek approval from the Director of Employment Standards to implement an agreement to work above 48 hours in a week.

Overtime Averaging

  • Overtime will only be allowed to be averaged over a period of not more than four (4) weeks; and
  • Director of Employment Standards will no longer need to approve the overtime-averaging agreements between an employee and their employer.

ESA Poster

  • Employers will not be required to post the ESA poster in their workplace (information about ESA entitlements and their regulations provided by the government)

Pesce & Associates will be providing updates regarding upcoming legislation as information is released. Reach out to our Managing Partner, Elizabeth Hill at 416.491.1501 ext. 23 or ehill@pesceassociates.com to discuss how we can help. For more information on our services, please visit our website at http://www.pesceassociates.com.

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