What are the obligations of an employer, as it relates to vacation and sick days? What changes during a crisis like the one we are currently navigating? Let’s dive in and explore.
For starters, let me recap the employment statutes for Ontario. Each province has their own set of laws. There are many laws and of course, it is all governed by the Ontario Human Rights Code. For purposes of this conversation, I’ll be focusing on the employer obligations related to sick days and vacation time.
The Employment Standards Act, 2000 (the “Act”) provides the minimum terms and conditions of employment. It’s important to note that, as an employer, if you agree to different terms of greater benefit to your employee, you are bound by those terms. You can’t fall back on the legislated minimum standards.
As an employer the burden of tracking hours worked, wages paid, sick and vacation days used, falls on you. In the event there is an issue, Officers will typically default to the word of the employee, if you can’t provide accurate and detailed records.
Below is a summary of the key points related to various employer responsibilities. For full details, including all exceptions and special provisions, you can find the Act outlined here.
Payment of Wages
“An employer shall establish a recurring pay period and a recurring pay day and shall pay all wages earned during each pay period, other than accruing vacation pay, no later than the pay day for that period.”
Employers are required to allow an unpaid eating period of at least half-hour enough that no employee will have to go for over five hours without a meal break.
Employers are required by law to provide their employees with a minimum of twenty-four (24) consecutive hours of rest per week.
Employees working more than forty-four (44) hours in a week are entitled to time and one-half (1.5X) of their regular base rate of pay for all hours worked over that threshold. The overtime provisions do not apply to managerial and supervisory personnel.
The Act requires that employees be given public holidays with pay each year. It’s important to note that even an employee who does not work on a public holiday is still entitled to their wages for that day. The nine (9) currently designated holidays in Ontario are:
- New Years Day
- Good Friday
- Family Day (the third Monday in February)
- Victoria Day
- Dominion Day
- Labour Day
- Thanksgiving Day
- Christmas Day
- Boxing Day (day after Christmas Day)
Employees who are required to work on the holiday must be paid for the day together with holiday pay of 1.5 times their regular daily rate.
Employers are required to give employees at least two (2) weeks vacation with pay every year. The pay must be at least 4% of the previous year’s wages. Wages include all monetary payments but do not include gifts or bonuses, benefit fund or plan contributions, or the previous year’s vacation pay. An employees’ vacation entitlement begins to accrue as soon as they commence employment.
Pregnancy and Parental Leave
A pregnant employee who started employment with her employer at least thirteen (13) weeks before the expected date of birth of a child is entitled to a leave of absence without pay. An employee may begin pregnancy leave no earlier than seventeen (17) weeks before the expected date of birth. The pregnancy leave of an employee ends seventeen (17) weeks after the pregnancy leave began. Parental leave may be up to thirty-five (35) weeks in duration.
Other Authorized Leaves of Absence
The following authorized leaves of absence are also required under the Act:
Family Medical leave: Employees with family members with a significant risk of death occurring within twenty-six (26) weeks are entitled to leave without pay of up to eight (8) weeks in duration.
Organ Donor Leave: Employees with thirteen (13) or more weeks service who donate an organ are entitled to a leave of absence without pay of up to thirteen (13) weeks or for a “prescribed period”.
Emergency leave: Employees in workplaces with fifty (50) or more employees are entitled to up to ten (10) days of unpaid leave relating to personal illness, injury or medical emergency affecting either the employee them self or designated family members.
Reservist Leave: Employees who are Reserves with that Canadian Armed Forces are entitled to leave without pay in respect of identified deployments that prevent them from working.
Family Caregiver Leave: Employees that need to provide care to listed family members with a serious medical condition (without proof of risk of death within 26 weeks) are entitled to up to eight (8) weeks of leave without pay.
Critically Ill Child care Leave: Employees with at least six (6) months service are entitled to up to thirty-seven (37) weeks unpaid leave to provide care to a critically ill child.
Crime-Related Child Death and Disappearance Leave: Employees with at least six (6) months service are entitled to unpaid leave of up to fifty-two (52) weeks where their child has disappeared due to crime, and up to one hundred and four (104) weeks in the event of death resulting from crime.
Termination of Employment
The Act requires that employees be given advance notice of termination (or payment instead). The minimum length of notice required for individual terminations is determined by an employee’s length of service as follows:
Length of Service Notice Requirement
3 months but less than 1 year 1 week
1 year but less than 3 years 2 weeks
3 years but less than 4 years 3 weeks
4 years but less than 5 years 4 weeks
5 years but less than 6 years 5 weeks
6 years but less than 7 years 6 weeks
7 years but less than 8 years 7 weeks
8 years or more 8 weeks
Under the Act, a temporary lay-off is defined as a layoff of not more than thirteen (13) weeks in any period of twenty (20) consecutive weeks, or a lay-off of more than thirteen (13) weeks when certain conditions are satisfied.
As you can see from that summary of just some of the employment and labour laws, there is a lot to be aware of and comply with. As you can imagine, employment lawyers are an invaluable resource for employers.
All of that covers the responsibilities and obligations of employers at a minimum. It also presumes that “normal” working conditions and climate exist.
In times of crisis such as the current pandemic, many employers are left scrambling to determine the best way to proceed. There is extra governmental support and there are various guidelines for the unprecedented and extenuating circumstances we are facing.
Even with the help and support available, countless employers are faced with dilemmas when faced with protecting their employees and their business.
Many employers have instituted an “all hands on deck” policy, requiring employees to work (from home, unless an essential business) and not use vacation time.
Many employers are also assuming the last thing an employee wants now is time off – since there is no where to go and nothing to do.
In these stressful, chaotic and confusing times, mental health is an important consideration for all. For many, vacation time is exactly what they need right now. Time to relax with family and not juggle work and family obligations. If you are in a position to spare employees and allow some vacation time, you may want to consider this.
If your business or in-house counsel is struggling with an issues related to business closures, work from home, layoffs and other issues emerging from the COVID19 pandemic, our team of lawyers are here to offer the knowledge or extra man-power you need. Consultations are free, so let’s have a conversation and determine if we can provide the help you need.
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