Bill 148

Bill 148

Frequently Asked Questions

The following Bill 148 questions have been answered by an employment lawyer. This list is in no way an exhaustive or complete list of changes to the Employment Standards Act, 2000 or your rights or obligations under the Employment Standards Act, 2000 or any other law in Ontario. The following is legal information relevant to Ontario and it is not to be used as legal advice. There are links to resources that are believed to be legally accurate, but we do not guarantee that the information is accurate, timely or complete.

If you have questions about your rights or obligations under the Employment Standards Act, 2000 we recommend that you seek legal advice directly.

Have a question we haven’t answered? Please email bill148@theonn.ca


November 27, 2017

  • Independent contractor misclassification

January 1, 2018:

  • Parental and pregnancy leaves
  • Increased minimum wage ($14)
  • Vacation for employees with more than five years of service
  • Domestic and sexual violence leave
  • Public holiday pay
  • Personal emergency leave
  • Overtime

April 1, 2018:

  • New equal pay for equal work rules

January 1, 2019:

  • New scheduling rules
  • Scheduling – record-keeping requirements
  • Increased minimum wage ($15)

Ontario’s Employment Standards Act, 2000 (ESA) provides the minimum standards for most employees working in Ontario. It sets out the rights and responsibilities of employees and employers in Ontario workplaces.

The ESA applies to most nonprofit sector employers and employees. There are a few exceptions to this and there are a few jobs and industries with special rules under the ESA. You can use this tool to learn about the Industries and Jobs with Exemptions or Special Rules. Ontario is currently reviewing these exemptions and rules, so we could be seeing some changes to this.

On June 1, 2017, after a two-year process and review of the ESA, Ontario introduced the Fair Workplaces, Better Jobs Act (Bill 148) to amend the ESA. Bill 148 received Royal Assent on November 27, 2017 and many of its provisions are currently in force.

You may have heard that Bill 148 increased the minimum wage, but it also brought in many other important changes to the ESA and the Labour Relations Act, 1995.

As nonprofit sector employers, you should understand your obligations under the ESA, including the new rules introduced through Bill 148, so that you are compliant with the law.

Some employees may get a greater entitlement based on what an employer agrees to or what is in their collective agreement. If you think a provision in an employment contract or your internal policy offers a greater entitlement to an employee than what is in the ESA, you may want to get legal advice about this before assuming this is the case. This is a fact-specific analysis.

Some of the Bill 148 amendments to the ESA have or will come into force in your workplace regardless of your collective agreement provisions. Other changes contain transitionary provisions that allow employers to rely on collective agreement provisions for a certain time period.

The information in this FAQ was primarily created for non-unionized workplaces. If you have unionized workers, we recommend that you seek legal advice with regard to Bill 148.

It is important for employers to examine whether the individuals they treat as independent contractors are properly classified. It is sometimes hard to know whether an individual is an independent contractor or an employee. This always requires a fact-specific analysis, but there are factors to consider:

What are independent contractors?

An independent contractor is someone who runs his or her own business and provides services to an organization or a business in exchange for money. The individual may be an independent contractor if some of the following are true:

  • The individual owns and is responsible for some or all of the tools and equipment he or she uses to work
  • The individual can make a profit and has a risk of losing money in the business
  • The individual decides how or where the work is completed
  • An organization or business can end the individual’s contract for services, but cannot discipline the individual

 

What is an employee?

An employee performs work for an employer for wages. The individual may be an employee if some of these are true:

  • The employer supervises the individual’s work
  • The employer trains the individual
  • The employer can discipline the individual
  • The employer decides the hours the individual works
  • The employer decides what the individual does, how much he or she will be paid, and when the work must be completed
  • The employer decides where the individual performs the work
  • The employer provides the individual with tools, material and equipment to perform the work
  • The individual cannot subcontract his or her work to someone else

 

What are the changes to the ESA about misclassifying employees as independent contractors?

There have always been repercussions for misclassifying an employee as an independent contractor, but the Employment Standards Act now:

  • Specifically prohibits the misclassification of employees as independent contractors
  • Puts the onus on the employer to prove that the individual is an independent contractor if their classification is in dispute
  • Gives the Ministry of Labour the power to commence a prosecution against an employer, publication of a conviction, and monetary penalties if a person was misclassified

Remember: An individual can still be deemed to be an employee even if he or she:

  • Agrees to be an independent contractor
  • Charges HST
  • Submits invoices
  • Uses his or her own vehicle to carry out the work
  • Doesn’t have statutory deductions taken from his or her pay

There are new rules for pregnancy and parental leave. Pregnancy and parental leave under the ESA are unpaid, but an employee might be able to get EI maternity and parental benefits.

What are the changes to pregnancy leave?

This is a job-protected unpaid leave for employees who are pregnant or who have just given birth and who have been working for the employer for at least 13 weeks before the baby’s due date. This is an extension of the leave from six weeks to 12 weeks for employees whose leave begins on or after January 1, 2018.

New increases in the case of miscarriage or stillbirth:

  • If an employee’s leave began on or after January 1 2018 she is entitled to at least 12 weeks of leave after the miscarriage or stillbirth
  • If an employee’s leave began before January 1, 2018 her leave continues for at least six weeks after the miscarriage or stillbirth

What are the changes to parental leave?

Parental leave is job-protected unpaid leave for new birth parents and adopting parents who have worked for the employer for at least 13 weeks.

The new increases to parental leave can apply if the baby was born on or after December 3, 2017 or the baby came into the parent’s custody and care on or after December 3, 2017:

  • Increase from 35 weeks to 61 weeks for employees who take pregnancy leave
  • Increase from 37 weeks to 63 weeks for employees who do not take pregnancy leave

The employee must start the parental leave no later than 78 weeks after the child is born or comes into their custody and care.

What if the child was born or came into the employee’s custody and care before December 3, 2017?

  • Employees who take pregnancy leave can take up to 35 weeks of parental leave
  • Employees who do not take pregnancy leave can take 37 weeks of parental leave

These employees have 52 weeks to start their parental leave after the child is born or comes into their custody and care.

An employee on pregnancy or parental leave has a right to continue to participate in extended health and dental plans during the leave.

The general minimum wage increased to $14 an hour on January 1, 2018. It is scheduled to increase:

  • To $15 per hour on January 1, 2019, and
  • With inflation each October 1 thereafter

There was no obligation on January 1, 2018 to increase the wages of employees who already were making at least $14 an hour.

Do employees need to sign new contracts?

When raising an employee’s wage to $14 an hour, there is no obligation for the employee to sign new employment documents.

This applies to all employees:

  • Employees with a period of employment of at least five years are now entitled to three weeks of vacation and 6% vacation pay
  • Employees who have a period of employment that is less than five years are entitled to two weeks of vacation and 4% vacation pay

If you have a policy of paying out vacation pay on each pay cheque, this new rule still applies. The ESA still gives options for how vacation pay is paid out, including on each pay cheque.

What if an employment contract gives more than the ESA in terms of vacation?

Some employees may get a greater entitlement than what is in the ESA based on what an employer agrees to or what is in their collective agreement. The greater entitlement will prevail.

What should employers keep a record of?

Employers must keep a record for five years of various information related to vacation. You can learn more about your record keeping obligations here under Vacation Records. Please note that there may be different record keeping requirements that apply to you under other pieces of legislation.

This is a new job-protected leave of absence for employees who have been employed for at least 13 weeks. Employees are entitled to this leave if they or their child has been the victim of domestic or sexual violence, or have experienced a threat of domestic or sexual violence, and the leave is taken to:

  • Seek medical attention for the employee or the child in respect to the physical or psychological injury or disability caused by the domestic or sexual violence
  • Obtain services from a victim services organization for the employee or the child
  • Relocate temporarily or permanently
  • Seek legal or law enforcement assistance, including preparing for, or participating in, any civil or criminal legal proceeding related to, or resulting from, the domestic or sexual violence
  • Or such other purposes as may be prescribed

For the purposes of this leave, a “child” is under 18 years old, and includes a stepchild, foster child, or a child of which the employee is the legal guardian.

An employee who qualifies for this leave can take 10 days and up to 15 weeks each calendar year. The first five days of the leave are paid.

Can an employer ask for evidence to justify this leave?

The employee must provide reasonable information to the employer to justify the leave only if the employer requests it. Employers must have a system in place to keep any information or documents provided confidential.

Do employers need policies pertaining to domestic violence?

The Occupational Health and Safety Act requires employers to prepare a policy on workplace violence. The policy should address violence from all possible sources, including domestic/intimate partners. This requirement has been in place for some time now and is not a result of the amendments to the ESA. Click here to learn more.

In May, 2018, the government of Ontario reinstated the previous formula for calculating public holiday pay that applied prior to January 1, 2018. This took effect on July 1, 2018 and is slated to remain in effect until December 31, 2019 (although it may be changed before then). Employees who do not work regular hours will have their public holiday pay based on their total wages during the four-week period before the week of the holiday, divided by 20.

(Originally, Bill 148 mandated calculating holiday pay based on an average day’s pay, rather than a pro-rated amount, for holidays on or after January 1, 2018.)

 

What are regular wages?

Regular wages do not include overtime pay, public holiday pay, vacation pay, domestic or sexual violence leave pay, personal emergency leave pay, termination pay, severance pay, or termination of assignment pay.

Which employees are entitled to public holiday pay?

Employees, including full-time, part-time, and contract employees, are entitled to public holiday pay as long as they work on their last scheduled work day before the holiday and their first scheduled work day after the holiday, unless they could not work for a reason beyond their control. Being sick or injured may be considered a reason “beyond their control”.

What if the employee was away from work in the preceding pay period?

If the employee was on a personal emergency leave or vacation or both during the entire pay period preceding the holiday, then the calculation is done by looking at the wages earned in the pay period prior to the leave or vacation.

What if the employee would not ordinarily be working on the public holiday?

If the public holiday falls on a day that would not ordinarily be a working day for the employee or a day when the employee is on vacation, the employee is entitled to a substitute day off with public holiday pay as long as he or she is not on pregnancy or parental leave, or on a temporary layoff.

The employer and employee can agree electronically or in writing that the employee will be paid public holiday pay for the holiday, but will not take a substitute day off. Employers who provide a substitute day off are required to provide written confirmation of this. To learn more about public holiday pay, click here.

ALL employers, regardless of size, must now give ALL employees (covered by the Employment Standards Act) 10 job-protected personal emergency leave days per calendar year. If an employee has been employed for a week or longer, the first two personal emergency leave days they take must be paid at the employee’s regular rate. The other 8 days do not need to be paid.

What if an employee only takes part of the day off?

If an employee takes part of a day as personal emergency leave, the employer can count it a full day of leave.

What can an employee use this leave for?

Personal Emergency Leave is taken due to personal illness, injury or medical emergency, or, due to illness, injury, medical emergency, death, or urgent matter concerning certain family membersUrgent matters need to be unplanned, beyond the employee’s control, and have the potential to lead to serious negative consequences — for example, an employee’s babysitter calling in sick.

Can the employer ask for medical notes and other evidence to justify the leave?

  • An employer cannot require a medical note from a doctor, registered nurse, or psychologist for any of the 10 days
  • An employer can ask for a note from another health professional, such as a dentist or psychotherapist
  • An employer can still require reasonable non-medical evidence to support a leave — for example, a copy of an obituary or death certificate

How are these different from sick days?

  • “Sick days” are not explicitly required by the ESA; they are an entitlement that an employer chooses to offer. Personal emergency leave is explicitly required.
  • Sick days are usually paid and employers can still require a medical note for a sick day. This will depend on your internal policies related to sick days.
  • Sick days are usually only to be used for medically related needs whereas personal emergency days can be used in cases of death or urgent matters.

What if my employees already get sick days, personal days or bereavement days?

If you provide a greater benefit to your employees than what they are entitled to under the ESA you may not be required to give them personal emergency leave days on top of this. However, this will depend on the specific nature of the leave, not simply the number of days you offer. Employers can review their policies to see if the leave they offer meets the parameters for personal emergency leave set out above. You may also want to get legal advice about this issue as this is a fact-specific analysis.

Personal Emergency Leave entitles employees (covered by the ESA) to 10 days of leave. If an employee needs more than 10 days of leave, depending on their reason for needing the leave they might be able to take one of these other ESA leaves:

  • Family caregiver leave
  • Family medical leave
  • Critical illness leave
  • Crime-related child disappearance leave
  • Child death leave

An employer is NOT obligated to pay an employee on one of these leaves, but you may have a workplace policy or employment contract that offers paid leave.

An employee might also be able to get EI benefits to care for someone who is sick.

What is Family Caregiver Leave?

This leave is used to care or support a certain family member who has a serious medical condition. An employee may be able to take up to 8 weeks in a calendar year.

A serious medical condition may include a condition that is chronic or episodic.

An employee who takes this leave needs to provide their employer with a medical certificate from a doctor, registered nurse, or psychologist that confirms that the family member has a serious medical condition.

What is Family Medical Leave?

Family medical leave is used to provide care or support for a certain family member of the employee, including someone who thinks of the employee like a family member, who is dying.

An employee can take up to 28 weeks over a period of 52 weeks.

An employee who takes this leave needs to provide their employer with a medical certificate from a doctor or nurse practitioner that confirms the person being cared for or supported is:

  • Seriously ill, AND
  • Has a significant risk of dying within 26 weeks

 

What is Critical Illness Leave?

This leave replaces the “Critically Ill Child Care Leave”, and it can be used to care or provide support for a child or an adult.

Critical illness leave is used by employees who have worked for an employer for at least 6 consecutive months to provide care or support to a critically ill:

  • Family member, including someone who thinks of you like a family member; or
  • Child under 18 years of age, including a stepchild, foster child, and a child of whom the employee is the legal guardian

Critically Ill means the individual’s baseline state of health has significantly changed and their life is at risk as a result of an illness or injury.

For a child under 18, an employee can take up to 37 weeks over a 52 week period.

For an adult family member, an employee can take up to 17 weeks over a 52 week period.

An employee who takes this leave needs to provide their employer with a medical certificate from a doctor, registered nurse, or psychologist that confirms the person being cared for or supported is:

  • Critically ill, and
  • Needs care and support from a family member for a specific period of time

 

What is the Crime-related child disappearance leave and Child Death Leave?

These leaves have been amended and the changes are currently in effect.

These leaves are only available to employees who have worked at least 6 consecutive months for the employer. Either leave can be up to 104 weeks.

A “child” under either of these leaves can include a stepchild, foster child, and a child of whom the employee is a legal guardian.

An employee can ask for proof that you meet the requirements for this leave (for example, a police report).

Employees who are working overtime must be paid at the rate for the position they are working during the overtime period. This applies even if the employee holds more than one position with the employer.

What should employers keep a record of?

Employers must record the number of overtime hours that were worked and the rate of pay that applies and ensure the employee is paid properly.

Equal Pay for casual, part-time, temporary and seasonal employees

An employer cannot pay their casual, part-time, temporary and seasonal employees a different rate from their full-time employees if the employees perform “substantially the same work”.

Temporary help agency employees who are doing substantially the same work as employees of the client will also be entitled to the same rate of pay.

 

Inquiries:

Casual, part-time, temporary and seasonal employees will also be allowed to make inquiries about their rate of pay if they believe that they are not receiving equal wages to full-time employees. Employers will not be able penalize or threaten to penalize employees for doing so or against employees who disclose their rate of pay for the purpose of determining whether the employer is complying with their equal pay obligations.

 

What is “Substantially the same work”?

“Substantially the same work” means substantially the same but not necessarily identical. This term has been interpreted to mean:

  • work that requires substantially the same:
    • skill (amount of knowledge and capability of the employee)
    • effort (physical or mental)
    • responsibility ( number and nature of the job obligations, degree of accountability, degree of authority)
  • work that is similar enough that it could be in the same job classification but it does not need to be interchangeable
  • Similar working conditions
  • The same establishment (a business with more than one location will be considered the same establishment under certain circumstances)

 

Are there any exceptions to this rule?

There are certain exceptions to the “equal pay for work of equal value” rule when differential pay can be justified by:

  • A seniority system
  • A merit system in place at the workplace
  • A system that measures earnings by quantity or quality of production
  • Any other factor other than sex or employment status (number of hours regularly worked by the employees or a difference in their term of employment, including permanent, temporary, casual, or seasonal)

 

Does this rule apply to students?

The Equal Pay amendment will not apply to an employee who is:

  • a student under 18 years of age if they work 28 hours or less a week
  • a student who is employed during a school holiday

 

What should employers think about if they want to rely on an exception to the rule?

Employers should be able to point to a detailed written policy pertaining to the system that they argue justifies the exception. The policy should have clear objective parameters and have been applied fairly and equally across all employees. Employers should keep a detailed record of their rationale and supporting documentation including but not limited to evaluations and pay grids.

Coming into effect January 1, 2019  

 

Employees who have been employed for three months will have the right to request schedule or location changes, without fear of reprisal.

Employers must:

  • discuss the request with the employee
  • notify the employee of their decision in a reasonable amount of time in writing specifying the date of and duration the changes, and if the request is rejected, give the employee written reasons.

Coming into effect January 1, 2019  

 

What is the current 3 hour rule?

Until January 1, 2019, the current “3 hour rule” will remain in effect. This rule calculates the 3 hours of pay based on the greater of:

  • the employees regular wage for the time worked
  • 3 hours at minimum wage

 

What will the changes be to the 3 hour rule?

Changes to the “3 hour rule” that will apply to full-time, part-time, seasonal, casual, and contract employees as of January 1, 2019.

“Regular Rate” for the purposes of these new rules means: the amount earned for an hour of work in the employee’s usual work week, not counting overtime hours, OR if they are not paid hourly, the amount earned in a given work week divided by the number of non-overtime hours actually worked in that week.

Reporting to work

When an employee who regularly works more than 3 hours/day and reports to work but works less than 3 hours despite being available to work longer, the employee must be paid the greater of:

  1. 3 hours at the employee’s regular rate
  2. The pay earned while working (which could be more than their regular rate, for example, overtime pay, premium pay for night shifts) PLUS the remainder of the 3 hours at their regular rate

This means that an employee could earn more than 3 hours of pay at their regular rate.

 

Shift cancellation

When an employee’s scheduled work or scheduled on-call period is cancelled within 48 hours of its start, the employer must pay them 3 hours at their regular rate of pay. There are few exceptions to this rule.

 

On-Call

When an employee is “on-call” and they are not called in to work, or they report to work but work less than 3 hours despite being available to work longer, the employer must pay them 3 hours at their regular rate of pay for every 24 hour period that they are on-call.

The employee must have been available to work for at least 3 hours during the 24 hour period to qualify for this entitlement.

There is an exception to this rule if the employee is on-call for the purposes of ensuring the continued delivery of essential public services. You may want to seek legal advice if you think this exception may apply to your workplace.

Coming into effect January 1, 2019  

If an employer asks an employee to work a shift or be on call with less than 96 hours notice, the employee can refuse the employer’s request without reprisal.

Are there any exceptions to this rule?

There are a few exceptions to this rule, including if the employer’s request is to deal with an emergency, to remedy a threat to public safety, ensure delivery of essential public services or for other reasons prescribed by regulation.

Coming into effect January 1, 2019

There will be new record-keeping requirements for employers in effect. These changes include, but are not limited to, the Employer’s responsibility for keeping records of:

  • Dates and times of scheduled work or on call work, and any changes to the schedule
  • The date and time of any cancellations of a scheduled day of work or scheduled on call period of the employee

For a longer review of the other record-keeping obligations under the Employment Standards Act, click here.

It is important to know that other pieces of legislation may have different record keeping requirements that are still in effect. Employers should make sure they are in compliance with them.

The Ministry of Labour enforces the Employment Standards Act and its regulations, including the changes brought into effect by Bill 148. In fact, the Province is hiring up to 175 more employment standards officers to enforce these changes.

Employees can file an ESA complaint with the Ministry of Labour if they believe their employer has violated the ESA. Employees are no longer obligated to contact their employer before doing this.

The Director of Employment Standards will decide whether to assign an Employment Standards Officer (ESO) to investigate the complaint.

After the ESO has finished their investigation, they will decide whether there has been a violation of the ESA. If there has been a violation, the ESO may find it necessary to issue an order to pay wages, a ticket, a compliance order, a notice of contravention or, an order to reinstate and/or compensate an employee if the employer is unwilling or unable to comply with the SO’s decision.

ESOs also conduct proactive inspections of payroll records and other records, including employment practices. The ESO can visit your workplace with or without notice. The employer is required to produce requested records and answer relevant questions.

Bill 148 has increased the flexibility around the monetary orders an ESO can give to an employer who is violation of the ESA.

The Ministry of Labour can also decide to initiate a prosecution in court for a violation of the Employment Standards Act.