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Posts tagged: pregnancy leave

Bill 148 – Summary of Changes to the Employment Standards Act and When Each Change is Implemented

By , December 4, 2017 2:24 pm

On November 22, 2017, the Ontario legislature passed the final version of Bill 148- the Fair Workplaces, Better Jobs Act. Below is a summary of some of the provisions of the Act , their dates of implementation and their impact on employers and employees throughout Ontario. We offer a fixed fee service for employers who need help complying with these changes. 

 

Provision Amendment Effective Date
Minimum wage General minimum wage will increase to $14 per hour on January 1, 2018 and $15 per hour on January 1, 2019. There will also be a proportional increase to special minimum wage rates. January 1, 2018: $14/h

January 1, 2019: $15/h

Minimum wage will increase every year going forward subject to an annual inflation adjustment on October 1 of every year starting in 2019

Misclassification of workers An employer who wrongfully classifies a worker as a non-employee (i.e. an independent contractor, or other nonemployee) will now be in contravention of the ESA and subject to penalties.
Note: The burden of proof lies on the employer to show that the person is not an employee.
 November 27, 2017
Equal Pay for Equal Work – No difference in pay rate because of employment status Employers will be prohibited from paying employees at different rates depending on whether they are full-time, part-time, seasonal, etc. unless an exemption applies.

An employee may request a review of their rate of pay from the employer, to which the employer must respond if it disagrees with the employee’s belief that this section has been breached.

Note: The reprisal provisions have been amended to protect employees who avail themselves of this change.

The rule will not apply when the difference in pay rate is made on the basis of: (a) a seniority system; (b) a merit system; (c) a system that measures earnings by quality of production; or, any other factor other than sex or employment status.Unionized employers: if a collective agreement (“CA”) that is in effect on April 1, 2018 contains a provision that permits differences in pay based on employment status, and there is a conflict between the provision of the CA and this rule, the provision of the CA prevails until the earlier of the date the CA expires and January 1, 2020.

 April 1, 2018
Equal pay for equal work for assignment employees This new change mandates equal pay for temporary help agency employees:

• equal pay for jobs that are substantially the same but not necessarily identical to   regular employees;

• where performance requires substantially the same skill, effort and responsibility; and,

• when work is performed under similar working conditions.

There are however  exceptions: namely, when the difference in the rate of pay is made on the basis of any other factor other than sex, employment status or assignment employee status.
Unionized employers: if a collective agreement (“CA”) that is in effect on April 1, 2018 contains a provision that permits differences in pay between employees of a client and an assignment employee, and there is a conflict between the provision of the CA and this rule, the provision of the CA prevails until the earlier of the date the CA expires and January 1, 2020.

 April 1, 2018
Holiday Pay Holiday pay will be calculated as the average daily wages earned in the pay period leading up to the holiday instead of the current law which is calculated as wages and vacation pay earned in the four work weeks prior to the week in which the holiday falls, divided by 20.

If the employee was not employed during the pay period immediately preceding a public holiday, the employee’s public holiday pay for the public holiday shall be equal to the amount of regular wages earned in the pay period that includes the public holiday divided by the number of days the employee worked in that period.

January 1, 2018
Substitute holidays The rule on substituted holidays remains but with the new imposition of written requirements for documenting substitutions.
Under the new law, the employer must provide the employee with a written statement outlining: a) the public holiday (on which the employee will work); b) the substitution date; and, c) the date the written statement was provided to the employee. 
 January 1, 2018
Vacation entitlement, pay and timing   A minimum 3 week vacation entitlement to employees whose period of employment is five years or more.

 

There is also a requirement that an employee must pay vacation pay equal to at least, (a) 4 per cent of the wages if the employee’s period of employment is less than five years; or (b) 6 per cent of the wages if the employee’s period of employment is five years or more.

 

Vacation Timing: (i) The vacation must be completed no later than 10 months after the end of the vacation entitlement year for which it is given. (ii) If the employee’s period of employment is less than five years, the vacation must be a two-week period or two periods of one week each, unless the employee requests in writing that the vacation be taken in shorter periods and the employer agrees to that request. (iii) If the employee’s period of employment is five years or more, the vacation must be a three-week period or a two-week period and a one-week period or three periods of one week each, unless the employee requests in writing that the vacation be taken in shorter periods and the employer agrees to that request.

 January 1, 2018
Paid Personal Emergency Leave All employees will be entitled to 10 days off for personal emergencies, the first two of which must be paid.
[Note: Currently, employees who work for employers with less than 50 employees are not entitled to this leave. Also employees are not currently entitled to any paid personal emergency leave.]
Employers retain the right to require evidence of entitlement to these days but are not permitted to require a certificate from a qualified health practitioner.
Qualifying period: The employee must have worked for the employer for at least one week before reaching entitlement for the two paid days. Regardless of overtime pay or shift premiums, the employee will be paid regular wages.
 January 1, 2018
Cancellation Pay – Guaranteed Three Paid Hours Employees are entitled to a minimum of three hours’ pay at their regular rate (i) for being on call (even if they are not called into work) or (ii) if an employer cancels the employee’s shift within 48 hours of the start of that shift.
This amendment includes exemptions in circumstances:

• Beyond the employer’s control – such extreme weather, power failure, etc.

• Where the work is weather dependent and the employer cannot provide work for weather dependent reasons.

• Where the employer requires the employee to be on call for the purposes of ensuring the continued delivery of essential public services.

Unionized employers:

if a collective agreement (“CA”) that is in effect on January 1, 2019 contains a provision that addresses payment when the employer cancels the employee’s scheduled work or on-call period, and there is a conflict between the provision of the CA and this rule, the provision of the CA prevails until the earlier of the date the CA expires and January 1, 2020.

 January 1, 2019
Employees Who Regularly Works Three Hours are Guaranteed Three Paid Hours: Employees who regularly work more than three hours each day must be paid three hours at their regular pay rate if they are required to work and work for less than three hours despite being available to work longer.

Exception: the rule does not apply if the employer is unable to provide work for the employee because of weather, fire, or other similar causes beyond the employer’s control

 January 1, 2019
On-Call Employees – Guaranteed Three Paid Hours: If “on call” employees are not called into work, or are called in but work less than three hours despite being available to work longer, then they must be paid three hours at their regular pay rate, and this is required for each 24-hour on-call period.

Note: Currently an employee who is called into work is entitled to the greater of their wages earned and three hours at the minimum wage.

Exceptions: the rule does not apply if the employer is unable to provide work for the employee because of weather, fire, or other similar causes beyond the employer’s control.

The three-hour rule also does not apply if the employer required the employee to be on call for the purposes of ensuring the continued delivery of essential public services.

January 1, 2019
Right to Refuse – 96 Hour Rule: An employee is now entitled to refuse without repercussion an employer’s request to work or to be on call if the request is made less than 96 hours prior to the commencement of the shift.

Exception: Where the work is to: a) deal with an emergency; b) to remedy or reduce a threat to public safety; c) ensure the continued delivery of essential public services; or d) for such other reasons as may be prescribed.

Note: An “emergency” is this section would refer to a situation or an impending situation that constitutes a danger of major proportions that could result in serious harm to persons or substantial damage to property and that is caused by the forces of nature, a disease or other health risk, an accident or an act whether intentional or otherwise, or  a situation in which a search and rescue operation takes place.

Unionized employers: if a collective agreement (“CA”) that is in effect on January 1, 2019 contains a provision that addresses an employee’s ability to refuse the employer’s request or demand to perform work or be on call on a day the employee is not scheduled to work or be on-call, and there is a conflict between the provision of the CA and this rule, the provision of the CA prevails until the earlier of the date the CA expires and January 1, 2020.

January 1, 2019
Overtime pay when employee has two or more rates of pay If an employee has two or more regular rates for work performed for the same employer in a work week, the employee is entitled to be paid overtime pay for each hour of work performed in the week after the total number of hours performed for the employer reaches the overtime threshold.

Additionally, the overtime pay for each hour is one and a half times the regular rate that applies to the work performed in that hour

January 1, 2018
Right to request changes to schedule or work location Employees with at least three months’ tenure with their employer can request changes to their schedule or work location. Employers who receive these requests must discuss them with the employee and either grant them or provide reasons for their denial. January 1, 2019
Domestic or sexual violence leave An employee, who has been employed by an employer for at least 13 consecutive weeks, is entitled to take a leave of absence if the employee or their child experiences sexual or domestic violence.
The leave can be up to 10 days (taken individually), and up to 15 weeks (intermittently) to a maximum of 17 weeks total. The leave may be taken: to seek medical attention; to obtain services from a victim services organization; to obtain counselling; to relocate; or, to seek legal or law enforcement assistance.
The first 5 days of the leave must be paid
January 1, 2018
Critical-Illness of an Adult Family Member An employee may take leave to provide care and support to any critically ill family member for up to 17 weeks
A qualified health practitioner must issue a certificate that, (a) states that the adult is a critically ill adult who requires the care or support of one or more family members; and (b) sets out the period during which the adult requires the care or support.
December 3, 2017
Pregnancy and parental leave Pregnant employees with at least 13 weeks service will be entitled to 18 months pregnancy and parental leave
Amendments will extend the leave for employees who suffer a stillbirth or miscarriage from 6 to 12 weeks.
The length of parental leave is extended from 35 to 61 weeks if the employee took a pregnancy leave and from 37 to 63 weeks for employees who did not. An employee may commence parental leave no later than 78 weeks (previously 52) after the day the child is born or comes into the employee’s care or custody for the first time.
December 3, 2017

 

January 1, 2018

 

 

December 3, 2017

 

 

 

 

Family medical leave Increased leave from 8 to up to 28 weeks of leave. Expansion of the definition of “qualified health practitioner” to now include certain registered nurses or individuals with equivalent qualifications, and, in some circumstances a member of a prescribed class of health practitioners January 1, 2018
Termination of temporary agency assignment employees Temporary help agencies must now provide an assignment employee with one week’s written notice or pay in lieu, if an assignment that was estimated to last for three months or more, is terminated before the end of its estimated term, unless another assignment lasting at least one week is offered to the employee. January 1, 2018
Record Keeping A larger list of recordkeeping requirements has been imposed, which will be coming into force on varying dates:

– Dates and hours worked.

– Where an employee has two or more regular rates of pay, the dates and times that the employee worked in excess of the overtime threshold at each rate of pay.

– Records of substitute holidays (mentioned above).

– Retention of documents for all leaves. – Record-keeping of vacation pay and vacation time.

– Record retention for 5 years instead of 3

January 1, 2018
Record Keeping Requirements for Employers with On-Call Employees Employers with on-call employees:

– Dates and times of work and on-call schedules, and any changes made to oncall scheduling

-Dates and times of cancellations of a scheduled day of work or scheduled on-call period.

January 1, 2019
Record Keeping Requirements for Temporary Help Agencies. Temporary help agencies must:

– record the number of hours worked by each assignment employee for each client of the agency in each day and each week; and
-retain a copy of any written notice provided to the employee upon termination of an assignment.

January 1, 2018
Footwear with elevated heel under the Occupational Health and Safety Act (“OHSA”). A new section is added to the OHSA stating that an employer shall not require a worker to wear footwear with an elevated heel unless it is required for the worker to perform his or her work safely. An exception to this prohibition is made for employers or performers in the entertainment and advertising industry. November 27, 2017


The material and information in this blog and this website are for general information only. They should not be relied on as legal advice or opinion. The authors make no claims, promises, or guarantees about the accuracy, completeness, or adequacy of any information referred to in this blog or its links. No person should act or refrain from acting in reliance on any information found on this website or blog. Readers should obtain appropriate professional advice from a lawyer duly licensed in the relevant jurisdiction. These materials do not create a lawyer-client relationship between you and any of the authors or the MacLeod Law Firm.

The Impact of the Fair Workplaces Act on Pregnancy and Parental Leave

By , December 4, 2017 12:29 pm

Earlier this year we blogged about the proposed changes to the Employment Insurance Act which would allow new parents to receive their employment insurance benefits over 18 months instead of 12 months during their pregnancy and parental leave.

On November 9, 2017 the federal government implemented these proposals.

Although legislative changes were made to the Canada Labour Code to accommodate the changes to the Employment Insurance Act,  comparable changes were not made to the  Employment Standards Act. As a result, employees who were provincially regulated were unable to access the increased pregnancy and parental leave, and the associated employment insurance benefits.

Since about 90% of employees are provincially regulated, the provincial governments were required to change their employment standards legislation to allow employees to take an 18 month leave of absence. As a result, on November 27, 2017 the provincial government passed the Fair Workplaces, Better Jobs Act, 2017 which incorporated an extended pregnancy and parental leave. These changes will come into effect  on December 3, 2017 and will allow new mothers in provincially regulated workplaces to take up to an 18 month unpaid leave of absence.

Lesson to Employers:

With the passing of The Fair Workplaces, Better Jobs Act, 2017, there are many provisions such as the above change to pregnancy and parental leave which come into effect as early as December 3, 2017.  MacLeod Law Firm offers a fixed fee service for employers who need help complying with these changes.

Employer Obligations: Pregnancy and Parental Leaves

By , May 1, 2017 2:10 pm

We often get calls from employers asking about their rights and obligations toward employees seeking pregnancy and parental leaves.

Applicable Legislation

About 90% of employees are provincially regulated and in Ontario the Employment Standards Act (the “ESA”) is the governing legislation. For more information about the ESA, click here.

Federally regulated employers such as banks, airlines and the federal government are governed by the Canada Labour Code.

Employees on pregnancy and parental leave are often entitled to employment insurance benefits and this legislation applies to most provincially and federally regulated employees.

This blog discusses proposed changes to the applicable federal legislation and summarizes an employer’s obligations to pregnant employees under the ESA.

Proposed Changes to the Canada Labour Code & the Employment Insurance Act

On March 22, 2017, the Canadian Federal Government released the 2017 Budget which proposed changes to parental and maternity leaves for federally regulated employees and employment insurance benefits. The primary changes are as follows:

  • Extending the pregnancy and parental leave under the CLC to 18 months
  • Parents have a choice to receive EI benefits for 12 months or 18 months.
  • If parents choose 18 months the total amount is less.  Benefits would be calculated at 33% of average weekly earnings instead of 55% for 12 months. The maternity leave benefits would remain at 55%
  • Birth-mothers can claim EI maternity benefits from 12 weeks before their due date (up from 8) 

The federal government has not tabled legislation to implement these proposals and no changes have been made to the current laws. We will inform you in a subsequent blog if and when any amendment to the current laws take place.

The Ontario government has not tabled any comparable changes to the ESA but we expect the government to propose significant changes to the ESA later this year. For a summary of some of the changes under consideration, click here.

The balance of this blog summarizes some of the relevant provisions in the ESA relating to pregnancy and parental leaves. This is legal information and the reader should consult an employment lawyer to obtain legal advice on an specific situation involving a pregnant employee.

An Employer’s Obligations to Pregnant Employees and Employees Seeking Parental Leave under Ontario’s ESA

Pregnancy Leave

Pregnancy Leave is often referred to as maternity leave. It is only available to women as birth-mothers. Employees who are full-time, part-time, permanent or term contract employees are eligible for a pregnancy leave.

  • The pregnant employee must have worked for the employer for at least 13 weeks prior to her expected due date.
  • The pregnancy leave is 17 weeks unpaid.
  • The leave can start as early as 17 weeks before the baby’s due date but must start at the latest on the day the baby is born.
  • If the employee starts the leave 17 weeks before the due date and is still pregnant at 17 weeks, the leave continues.
  • The employee may need to provide a medical note to her employer of the baby’s due date.

Miscarriage:

  • If an employee suffers a miscarriage within 17 weeks of the due date, she is eligible for pregnancy leave.
  • The leave must start on the day of the miscarriage.
  • The leave will end 17 weeks after leave began or 6 weeks after miscarriage – so the leave could be longer than 17 weeks.

Parental Leave

A new parent is entitled to an unpaid leave from work to care for a new child. This covers fathers, mothers, adoptive parents, and those in a relationship with a new parent who intend to treat the child as their own.

  • The employee must have worked for the employer for at least 13 weeks prior to her the leave.
  • Birth-mothers are entitled to 35 weeks of unpaid parental leave if they also take pregnancy leave (for a total of 52 weeks of unpaid leave).
  • Other parents are entitled to 37 weeks of leave.
  • Birth-mothers must start the parental leave as soon as their pregnancy leave ends.
  • Other parents must start their leave within 52 weeks after the child is born or placed with the parent for the first time
  • The leave must be taken all at once, the employee cannot break it up.
  • The total weeks between both parents could be 89 weeks.

Notice of Pregnancy Leave

  • The employee must give an employer two weeks written notice before beginning a pregnancy or parental leave.
  • The employee does not have to inform the employer of a return date. If she/he does not provide a return date, it is assumed that the leave will be the full period.
  • If the employee wants to return earlier or resign her employment, she/he must give four weeks written notice.

Right to Reinstatement

When returning from pregnancy or parental leave, an employee must be reinstated in their former position, or be given a comparable position in the same location and with the same wages and benefits. If wages went up while away, the returning employee must be paid at the higher rate.

If an employer has dismissed an employee for legitimate reasons that are totally unrelated to the fact that the employee took a leave, the employer is not required to reinstate the employee.

Employees continue to earn credits toward length of employment, length of service, and seniority during periods of leave.

Continuation of Employee Benefits

During a pregnancy and parental leave, the employee is considered to be continuously employed for the calculation of vacation entitlements, wage increases, termination entitlements, and pension, medical and other benefits ordinarily received.  The employer must also continue to pay benefit premiums during pregnancy leave—except in situations where the employee pays part of the benefit premium and chooses not to pay their portion during the leave.

Human Rights Protections

Under the Ontario Human Rights Code, every employee has the right to equal treatment with respect to employment, and to be free from discrimination because of family status or sex including pregnancy. Discrimination occurs if an employee experiences adverse treatment as a result of a pregnancy, because he or she took a leave to care for the new child, or because she is breast-feeding.

An employer cannot fire or lay off an employee because she is pregnant. An employee cannot be denied opportunities at work because they are, or may become, pregnant. This includes training, promotion or receiving certain projects.

If an employee is pregnant or nursing and requires modification to their job function or another position, your organization may be required to accommodate the employee’s needs.  The Ontario Human Rights Commission has stated that accommodation could include establishing a flexible work schedule, temporary reassignment or providing a quiet area for rest during breaks.

The cost of not accommodating a pregnant employee can be significant. For example, the Human Rights Tribunal of Ontario recently held in Ifrah v. National Income Protection Plan Inc, that an employer’s decision not to pay an employee on parental leave a bonus because she was on maternity leave for the last month of the retention period was discriminatory.

Similarly, the cost of terminating an employee can be significant. In Wratten v 2347656 Ontario Inc., an employee was awarded $20,000 as general damages because her employer terminated her employment after learning the employee was pregnant.

For over 25 years, Doug MacLeod of the MacLeod Law Firm has been advising employers on all aspects of the employment relationship. If you have any questions, you can contact him directly at 416 317-9894 or at [email protected]

The material and information in this blog and this website are for general information only. They should not be relied on as legal advice or opinion. The authors make no claims, promises, or guarantees about the accuracy, completeness, or adequacy of any information referred to in this blog or its links. No person should act or refrain from acting in reliance on any information found on this website or blog. Readers should obtain appropriate professional advice from a lawyer duly licensed in the relevant jurisdiction. These materials do not create a lawyer-client relationship between you and any of the authors or the MacLeod Law Firm.

 

 

 

Employee Terminations: How Employment Contracts and Legal Consultation Prevent Legal Fires

By , May 18, 2015 11:41 pm

I strongly recommend that employers require all new employees to sign an employment contract with a termination clause. As a result, the employer knows how much it will cost to terminate the employee and the employee is effectively precluded from commencing a wrongful dismissal claim.

To read more about the benefits of using employment contracts, click here.

This kind of termination clause does not however prevent an employee from claiming for additional termination pay under the Ontario Human Rights Code (the “Code”). To read a recent court case on this issue, click here.

Cases like this illustrate why I canvass all of the circumstances surrounding a proposed termination with a client before advising on the employee’s legal entitlements.

Is the employee pregnant, or has she recently returned from a pregnancy leave?

Has the employee recently taken time off work because of a disability or recently returned to work following a workplace accident?

Is the person trans gendered and has recently decided to present in a different gender?

If a factor in the employer’s decision to terminate a person’s employment is her pregnancy or because she is disabled or trans gendered then there likely has been a violation of the Code.

Lessons to be learned

1. Insist that all new hires sign an employment contract with a properly drafted termination clause.

2. If a person is terminated because of one (or more) of the 16 personal characteristics set out in the Code such as gender then there is likely a violation of the Code and the employee is likely entitled to more termination pay than set out in the termination clause of her employment contract.

3. Call an employment lawyer and explain all of the circumstances surrounding a termination before terminating the employee’s employment.

 

For the past 25 years, Doug MacLeod of the MacLeod Law Firm has been advising and representing employers in connection with employee terminations. If you have any questions, you can contact him at 416 317-9894 or at [email protected]

 

What Is The Cost of Terminating a Pregnant Employee?

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By , January 28, 2014 3:09 pm

The Cost of Terminating a Pregnant Employee

A Pregnant Employee’s Rights

In Ontario, any woman who is hired at least 13 weeks before the date her baby is expected to be born is entitled to take a pregnancy leave of up to 17 weeks followed by a parental leave of up to 35 weeks. She also has the right to return to her job (or to a comparable job if her job no longer exists) following the leave.

An Employer’s Rights

An employee must give her employer at least two weeks’ written notice before beginning her pregnancy leave. An employee can tell her employer when she will be returning to work, but she is not required to do so.

She can begin the leave earlier than she originally told her employer if she gives her employer new written notice at least two weeks before the new, earlier date.

A pregnant employee can return to work earlier than scheduled by providing her employer with 4 weeks notice of an early return to work.

If an employee wants to resign before the end of her pregnancy leave, or at the end of the leave then she must give her employer at least four weeks’ written notice of her resignation.

Small Business Exception?

This law applies to all employers; there is no exemption for small employers.

The Cost of Terminating A Pregnant Employee

We sometimes receive calls from employers who want to terminate the employee who is on a pregnancy leave and keep the employee’s replacement. This is generally a very bad idea.

The terminated employee can file a complaint under the Employment Standards Act and, if successful, the employer can be ordered to pay the employee significant damages. The employee can file her complaint to the Ministry of Labour and she can represent herself. In other words, it takes very little time and no cost to file this kind of complaint.

The Ministry of Labour can order the employer to reinstate the employee with back pay. If not, an employer can be ordered to pay the following damages:

(i) direct wage loss;
(ii) vacation pay on wage loss;
(iii) loss of job/loss of reasonable expectation of employment (usually one month per year of service); and
(iv) damages for emotional pain and suffering.

In one case, an employer was ordered to pay damages for loss of employment insurance benefits.

Damages are not limited to $ 10 000 which is usually the maximum an employer can be ordered to pay under the Employment Standards Act.

What is an Employer to Do?

  1. An employer must respect a pregnant employee’s right to decide whether or not to return to work after her leave. In our experience, it is very difficult to predict whether or not an employee will return to work.
  2. An employer can write to an employee four (or more) weeks before the end of the pregnancy/parental leave and remind the employee that she is required to provide the employer with at least four weeks’ written notice of resignation if she is not returning to work following her leave.
  3. An employer should make sure that it requires any replacement employee to sign an employment contract with a termination clause. This clause will allow the employer to terminate the replacement’s employment on short notice if the pregnant employee returns to work earlier than expected.

If you have any questions about managing a pregnant employee, please contact our managing partner, Doug MacLeod, at 416 317-9894 or [email protected]

 

 

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