Bill 148

Bill 148, the Fair Workplaces, Better Jobs Act, 2017 became law on November 27, 2017. As we have written in the special Bill 148 edition of our newsletter, In the Know, Bill 148 amends the Employment Standards Act, 2000 (the “ESA”), Labour Relations Act, 1995 (the “LRA”) and the Occupational Health and Safety Act (the “OHSA”). However, the coming into force dates of the amendments are staggered, particularly with regards to the ESA, meaning that while the majority of the amendments came into force on January 1, 2018, some became law earlier and others are not in effect yet.

Below we detail the Bill 148-enacted changes to the ESA and OHSA that have already come into force. Note that while the first change listed is to the OHSA, the remainder listed below are ESA amendments. Check back next week for an outline of the LRA changes that came into force on January 1, 2018.

 Came into Force November 27, 2017

  • Prohibition in the OHSA on requiring women to wear high heels in the workplace
    • Workers may only be required to wear footwear with an elevated heel if it is required to perform the work safely
    • Workers in the entertainment and advertising industry are exempt
  • Prohibition on employers treating employees as if they were not employees
    • Employers may not treat workers who are employees at law as if they were independent contractors

Came into Force December 3, 2017

  •  Parental Leave Enhancement
    • Parents who have been employed for at least thirteen (13) weeks and whose child is born or came into their care, custody and control on or after December 3, 2017 are entitled to sixty-one (61) weeks of unpaid leave (for employees who took a pregnancy leave) or sixty-three (63) weeks (for those who did not)
    • An employee may begin parental leave no later than seventy-eight (78) weeks after the day the child is born or comes into the employee’s custody, care and control for the first time
  • New Critical Illness Leave
    • Employees who have been employed for at least six (6) consecutive months are entitled to unpaid leaves of:
      • Up to thirty-seven (37) weeks in a fifty-two (52) week period to provide care or support to a critically ill minor child who is a family member of the employee, and
      • Up to seventeen (17) weeks in a fifty-two (52) week period to provide care or support to a critically ill adult who is a family member of the employee
    • The employee must provide the employer with a certificate from a physician, a registered nurse or a psychologist that states that the critically ill family member requires the care or support of one or more family members, and sets out the period during which the support is required

Came into Force January 1, 2018

  • First minimum wage increase
    • To $14/hour for regular minimum wage
  • Increased vacation entitlement for employees with five (5) or more years’ service
    • Employees with five (5) or more years’ service are entitled to three (3) weeks’ vacation time and six percent (6%) vacation pay
  • Holiday pay formula change
    • An employee’s public holiday pay is equal to the total amount of regular wages the employee earned in the pay period immediately preceding the public holiday, divided by the number of days the employee worked in that perio
  • Change to calculation of overtime pay for employees with different wage rates for different types of work performed
    • If an employee has two (2) or more regular rates for work performed for the same employer in a work week, the employee is entitled to be paid overtime pay (one and a half (1.5) times the regular rate) for each hour of work performed in the week after the total number of hours performed for the employer reaches the overtime threshold based on the regular rate for the work being performed during the overtime hour(s)
  • New recordkeeping obligations for temporary help agencies
    • Temporary help agencies must record the number of hours worked by each assignment employee for each client company of the agency in each day and each week
    • Temporary help agencies must keep a copy of any written notice give to an assignment employee relating to the termination of an assignmen
  • Amended penalty and enforcement provisions
    • Empower the government to prescribe more tailored penalties for ESA contraventions that would give Employment Standards Officers the discretion to determine a penalty for certain ESA contraventions within a pre-determined range set out in regulations
    • Authorize the Director of Employment Standards to publish information related to a deemed contravention of the ESA after a notice of contravention is issued
  • All amendments to leaves of absence, except enhancements to parental leave entitlements and the new critical illness leave
    • Personal Emergency Leave Enhancement
      • All employees are entitled to two (2) paid and eight (8) days off
        • The paid days must be used first, so long as the employee has been employed for more than one (1) week
      • Employees are entitled to personal emergency leave for:
        • A personal illness, injury or medical emergency
        • The death, illness, injury or medical emergency of, or urgent matter concerning, one of the following individuals:
          • The employee’s spouse
          • A parent, step-parent or foster parent of the employee or the employee’s spouse
          • A child, step-child or foster child of the employee or the employee’s spouse
          • A grandparent, step-grandparent, grandchild or step-grandchild of the employee or of the employee’s spouse
          • The spouse of a child of the employee
          • The employee’s brother or sister
          • A relative of the employee who is dependent on the employee for care or assistance
      • An employer may require an employee who takes personal emergency leave to provide evidence reasonable in the circumstances that the employee is entitled to the leave, but the employer may not require the employee to provide a doctor’s note as evidence that the leave is necessary
      • If an employee takes a paid day of personal emergency leave, the employer shall pay the employee,
        • the wages the employee would have earned had they not taken the leave, or
        • if the employee receives performance-related wages, including commissions or a piece work rate, the greater of the employee’s hourly rate, if any, and the minimum wage that would have applied to the employee for the number of hours the employee would have worked had they not taken the leave
    • New Domestic or Sexual Violence Leave
      • Employees employed for at least thirteen (13) consecutive weeks are entitled to both up to ten (10) days and up to fifteen (15) weeks of leave if an employee or the employee’s child experience sexual or domestic violence, or the threat of sexual or domestic violence, unless the domestic or sexual violence is committed by the employee
      • Employers must pay the employee for the first five (5) days of leave taken in a calendar year
      • The leave can be taken to:
        • Seek medical attention for the employee or the child of the employee,
        • Obtain services from a victim services organization for the employee or the child,
        • Obtain psychological or other professional counselling for the employee or the child,
        • To relocate temporarily or permanently, or
        • Seek legal or law enforcement assistance, including preparing for or participating in any civil or criminal legal proceeding related to the domestic or sexual violence
      • If an employee takes a paid day of domestic or sexual violence leave, the employer shall pay the employee,
        • the wages the employee would have earned had they not taken the leave, or
        • if the employee receives performance-related wages, including commissions or a piece work rate, the greater of the employee’s hourly rate, if any, and the minimum wage that would have applied to the employee for the number of hours the employee would have worked had they not taken the leave
      • An employer may require an employee who takes domestic or sexual violence leave to provide evidence reasonable in the circumstances of the employee’s entitlement to the leave
    • Family Medical Leave Enhancement
      • Employees can take an unpaid leave of twenty-eight (28) weeks in each fifty-two (52) week period to care for:
        • The employee’s spouse
        • A parent, step-parent or foster parent of the employee
        • A child, step-child or foster child of the employee or the employee’s spouse
      • A physician or nurse must issue a certificate stating that the individual has a serious medical condition with a significant risk of death occurring within twenty-six (26) weeks
      • An employer may request a copy of the certificate, and the employee must provide it as soon as possible
    • Child Death Leave Enhancement
      • Parents who have been employed by the same employer for at least six (6) months and whose minor child has died for any reason are entitled to one hundred and four (104) weeks of unpaid leave
      • An employee is not entitled to a leave if the employee is charged with a crime in relation to the death of the child whose minor child has died for any reason
      • An employer may require an employee who takes a leave under this section to provide evidence reasonable in the circumstances of the employee’s entitlement to the leave
    • Crime-Related Child Disappearance Leave Enhancement
      • Parents who have been employed by the same employer for at least six (6) months and whose minor child has disappeared are entitled to one hundred and four (104) weeks of unpaid leave, provided that the disappearance was probably the result of a crime, the employee was not charged with the crime, and it was not probable in the circumstances that the child was involved with the crime,
      • An employer may require an employee who takes a leave under this section to provide evidence reasonable in the circumstances of the employee’s entitlement to the leave
    • Pregnancy Leave Enhancement
      • Employees employed for at least thirteen (13) weeks who suffer a miscarriage or stillbirth are entitled to twelve (12) weeks of unpaid leave after the miscarriage or stillbirth for leaves that begin on or after January 1, 2018, even if they had already used their entire original pregnancy leave entitlement
      • The employer may request a certificate from a physician, midwife or registered nurse stating the date of the miscarriage or stillbirth

Should you have any questions about the new legislative requirements and/or how to strategically meet your compliance obligations, please feel free to contact any of our lawyers.

 

This blog is provided as information and a summary of workplace legal issues.

This information is not intended as legal advice.