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Employer AdviceSeptember 24, 2021by Olivia CicchiniOntario’s Employment Standards Act: A Quick Guide for Employers

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The 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.

What is the purpose of the Employment Standards Act?

The Act 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 the ESA?

Here are some important subjects covered by the ESA.

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.

Rest periods

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.

Minimum wage

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 liquor servers, students, homeworkers, and hunting and fishing guides. Some industries are exempt from the minimum wage provisions of the ESA.

It is important to note that the minimum wage in Ontario will increase on October 1, 2021. The general minimum wage is going up by 10 cents and will be $14.35 per hour.

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.

Public holidays

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 ESA. 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 Ontario ESA, 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.

Sick 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 will be in effect till December 31, 2021.

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.

Bereavement leave

Under Ontario’s ESA, 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 the ESA 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 (ESA), 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 leave

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.

To be eligible for reservist leave, an employee must have worked for an employer for at least 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.

Notice requirements

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.

Severance pay

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 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 January 1, 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 January 2, 2022, the usual ESA rules around constructive dismissal and temporary layoff will resume.

Are there any other laws besides the ESA 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.

This article provides a brief overview of Ontario’s Employment Standards Act 2000. It is not a legal document. For more details, please refer to the ESA.