Bill 148: Amendments to Ontario’s Workplace Legislation Passed

Authored by Philip A.S. Milley, Associate Director Legal Affairs 

On November 27, 2017, the Ontario Bill 148 Fair Workplaces, Better Jobs Act, 2017 received Royal Assent, which will bring into force changes to Ontario’s workplace legislation, including the Employment Standards Act, 2000 SO 2000 c 41 and the Labour Relations Act, 1995 SO 1995 c 1 Sch A. We previously discussed this legislation in a blog post accessible here. Since that report, the Ontario government amended several of the provisions. To the surprise of many charities, the legislation contains more than simple increases to the provincial minimum wage.

While the most significant portions of the legislation will come into effect on January 1, 2018, not all changes will go into effect right away. Several of the changes were introduced on December 3, 2017, and others will be introduced gradually. Most charities will be interested in the changes to the Employment Standards Act (the “ESA”), as these are the laws that apply to non-unionized workplaces. The changes made to the Labour Relations Act will bear no impact on non-unionized workplaces. As a result, only the most significant changes that impact non-unionized workplaces are reviewed below.

Changes that come into force on December 3, 2017 and Janurary 1, 2018

The legislative changes that will come into force on January 1, 2018, include:

1. Increase to Minimum Wage: Minimum wage will increase on January 1, 2018, to $14.00 and again on January 1, 2019, to $15.00. Minimum wage is also to be subject to an annual inflation adjustment on October 1 of every year starting in 2019.  For students under the age of 18 whose weekly hours do not exceed 28 hours or who are employed during a school holiday, the minimum wage will increase to $13.15 per hour on January 1, 2018, and again on January 1, 2019, to $14.10.
2. Three Weeks’ Paid Vacation: In effect on December 3, 2017, entitlement to paid vacation increases from two to three weeks for employees of five or more years of service. Vacation pay will accrue at a rate of 4% for employees of less than five years and 6% for employees of at least five years’ tenure.
3. New Calculation for Public Holiday Pay: A simplified calculation method for public holiday pay has been introduced.
4. Fewer Exceptions to Minimum Wage: Section 1 of the ESA will be amended to either eliminate or increase lower pay rates permitted for certain types of employees, including, among others, students.
5. Longer Leaves:
   1. Personal emergency leave will be extended to all employees. In addition, the first two days must be paid.
   2. Family medical leave is increased from eight weeks to 28 weeks.
   3. Employees are entitled to 104 weeks of unpaid leave for circumstances where an employee’s child dies or disappears related to crime.
   4. The entitlement to six weeks’ pregnancy leave in certain circumstances is increased to 12 weeks
   5. 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.
   6. A new entitlement to domestic or sexual violence leave provides that an employee who has been employed by an employer for at least 13 consecutive weeks is entitled to up to 10 individual days of leave as well as 15 consecutive weeks of unpaid leave if the employee or a child of the employee experiences domestic or sexual violence or the threat of domestic or sexual violence. The first five days of leave are to be paid.

7. No More Sick Notes: Employers will not be permitted to request sick notes from an employee taking personal emergency leave.
8. Fines for Misclassification of Employees: Bill 148 prohibits an employer from misclassifying employees as independent contractors and, therefore, will be subject to fines. Employers will bear the burden to prove that an individual classified as an independent contractor is not an employee.
9. New Public Holiday: Family Day, which is to be the third Monday in February, is included in the definition of public holiday.
10. New Overtime Rule: A new overtime rule for employees who have two or more regular rates of work for the same employer.

Changes that will come into force gradually include:

1. Equal Pay for Equal Work: Employment status, such as casual, part-time, temporary, and seasonal will no longer be a basis for paying lesser rates. Subject to limited exceptions, employees will be entitled to substantially the same pay as full-time employees for the same work. This change is set to be introduced on April 1, 2018.
2. Increased Employee Rights regarding Shifts: Various employee rights will be introduced on January 1, 2019, including the right:
   1. to request scheduling and work location changes, once the employee has been employed for at least three months;
   2. to refuse shifts assigned with less than four days’ notice; and
   3. to receive three hours’ pay for shifts less than three hours for being on-call when not called in for at least three hours, and for shift cancellations on less than 48 hours notice.
3. Minimum Wage Increases: January 1, 2019, to $15.00. Minimum wage is also to be subject to an annual inflation adjustment on October 1 of every year starting in 2019.

What this Means for Charities

Charities with provincially-regulated employees in Ontario will be interested in the upcoming changes to the ESA, as the changes will have a significant impact on your ministry. It is likely that increased operational and administration costs will be necessary. While some of the changes are more general, such as a new requirement that prohibits employers from treating an employee as if the person were not an employee under the ESA, many of the changes relate to very specific changes. Your charity should be prepared to implement and address necessary changes before the legislation comes into force.