Higher wages, more vacation, more protected leave – what’s not to like?

On November 22, 2017, the Ontario government passed the Fair Workplaces, Better Jobs Act, 2017.

Employment-LawAccording to its summary, these changes were brought about because of a recognition that the economy is changing and many workers struggle to support their families on part-time, contract or minimum-wage work, and many more don’t have access to time off due to illness.

The changes brought about by the new law are significant and include the following:

·     An increase in minimum wage from $11.40 to $14.00 in 2018 and to $15.00 in 2019;

·     Three weeks’ vacation for employees who have worked five years or more;

·     Ten days of Personal Emergency Leave for all employees (not just those working in a business with 50 or more employees), two of which must be paid and in respect of which a medical note cannot be required by the employer;

·     An increase in Compassionate Care Leave from 8 weeks to 27 weeks; and

·     A new method of calculation of public holiday pay.

Many of the changes are effective January 1, 2018.  Other changes, including rules regarding scheduling of shifts, and payment for being on call, will come into play in January 2019.

It is difficult to argue with the idea of higher wages, more paid vacation, higher paid public holidays, and more job-protected leave time. These changes are consistent with the idea of building a caring society where people are paid fairly for their work and can enjoy some leisure time.  Looking at the changes strictly from the employee’s perspective, there is little not to like.

From the employer’s point of view, these new rules likely appear less rosy. While many people associate “employer” with large corporations, public institutions and successful companies with ample resources, the fact is that in 2015,  87.3 % of Ontario’s population was  employed by small and medium sized businesses. 1 While some of these small and medium sized companies may have little trouble adapting to the new changes, a study by the Canadian Center for Economic Analysis on the potential impact of this new legislation cautions that those small businesses with 20 or less employees may be particularly negatively impacted by the sudden significant increase in costs.2 There will also be the demands associated with compliance with the new rules which the Ministry of Labour has promised to vigilantly enforce through the hiring of more enforcement officers who will conduct more inspections, impose higher fines and publish the names of non-compliant businesses. 3

Some have suggested that rather than protect workers, the new legislation will encourage employers to adopt new technologies that will allow them to reduce their workforce.  It is also possible that some businesses will be forced to close because the costs are too much.  Each year thousands of businesses enter and exit the market place.  Over the coming years it will be interesting to track whether, in the wake of these legislative changes, there were a greater number of businesses exiting the Ontario market or an overall decline in jobs.

Developing ways to respond to the changing economy and fostering a caring and equitable workforce are positive initiatives.  It remains an open question whether this new law will be able to accomplish its goals.

Colleen Hoey is a partner at Mann Lawyers LLP and can be reached at 613-369-0366 or at Colleen.Hoey@mannlawyers.com.

1 https://www.ic.gc.ca/eic/site/061.nsf/eng/h_03018.html#point2-1.

2 http://www.occ.ca/wp-content/uploads/2013/05/CANCEA-Analysis.pdf

3 https://www.ontario.ca/page/plan-fair-workplaces-and-better-jobs-bill-148

Advertisements

Job Protection when Family Members are Sick or Terminally Ill

cropped-background-employment.jpg

Have you ever wondered what would happen to your job if a family member got sick and needed you to care for them?

What Protections Are Available Now if a Family Member Gets Sick: Family Medical Leave?

Currently, if a family member is terminally ill an employee, whether full time, part time or under a term contract is entitled, under section 49.1 of the Employment Standards Act, 2000  (“ESA”) to eight weeks of job-protected unpaid leave.  This is called Family Medical Leave.   In order to qualify an employee needs to provide a doctor’s letter which provides that there is a significant risk of death to a family member occurring within a period of 26 weeks.  An employee who takes Family Medical Leave is also eligible to apply for up to six weeks of Compassionate Care Benefits under the Federal Employment Insurance (EI) Act.

Ten days of unpaid job protected personal emergency leave is also available under section 50 of the ESA to employees because of personal illness, injury or medical illness of the employee or their family (broadly defined) but this is only available to employees who work in an organization with 50 employees or more.  While some employers have paid benefit plans for sickness, bereavement and other leaves of absence, this is not required by the ESA.

The New Protections are being proposed:  Leaves to Help Families – Bill 21

The Ontario Government is once again proposing to add additional unpaid job-protected leave for caregivers.  (An earlier version of this Bill was previously introduced as Bill 30 but did not pass third reading before the former government was prorogued).

The amendment to s. 49.3 of the ESA would create family caregiver leave and allow an employee up to eight weeks of unpaid leave to care for a family member who has a serious medical condition. To qualify a medical certificate would still be required but it would only need to confirm that the medical condition was serious.

Other amendments include those to sections 49.4 and 49.5 which create critically ill child care leave and crime-related child death or disappearance leave respectively.

It is not yet clear whether people who take advantage of these new forms of leave would be entitled to Employment Insurance benefits.  In the event that EI is not available it raises the question: how many people would be able to afford to take advantage of 8 weeks unpaid leave?

As it stands, Bill 21 will require that people who take this leave would have to take the leave a week at a time.  This has been the source of some debate in the legislative assembly.

From an employer’s perspective this kind of leave may present its own set of challenges, particularly for smaller and medium sized businesses who may find the impact of an employee’s eight week absence significant, both economically and practically. Family Caregiver Leave may prove to be particularly challenging for employers because employees will be able to take up to 8 weeks leave for each person who qualifies as a family member under the ESA.  The definition of family member includes spouses, parents, children, siblings, grandparents and grandchildren, dependent relatives and other prescribed people.

Bill 21 which amends the Employment Standards Act is currently in its second reading.

Colleen Hoey is an Ottawa-based lawyer practicing in the areas of Employment Law, Human Rights Law, and Civil Litigation at Mann & Partners, LLP. The articles on this blog are not intended to provide legal advice. Should you require legal advice, please contact Mann & Partners, LLP at 613-722-1500 or fill out our form to be contacted within 24 hours.