Sunday, 5 August 2012

Public Holidays under the Ontario Employment Standards Act

For most workers in Ontario, the first Monday in August and Easter Monday are paid days off work. However, neither is a “public holiday” as defined by the Ontario Employment Standards Act, 2000. What that means is that the rules surrounding statutory holiday pay do not apply to “the Civic holiday” or to “Easter Monday.” But, that does not necessarily mean that they cannot be treated by any particular employer as a ‘holiday;' on this point see the post Any Day Can be a Holiday.

The points above provide an opening to discuss what the rules surrounding such holidays actually are.

The Public Holidays

Under the Employment Standards Act, 2000 [“the ESA”] Ontario has nine “public holidays.” Those days are:

  1. New Year's Day
  2. Family Day
  3. Good Friday
  4. Victoria Day
  5. Canada Day
  6. Labour Day
  7. Thanksgiving Day
  8. Christmas Day; and
  9. December 26

Note that Easter Sunday, Easter Monday, the August Civic Holiday Monday, and Remembrance Day are not holidays that appear on that list and as such employers are not required to give their employees the day off.

Pay on Public Holidays

Employees in Ontario covered by Part X of the ESA are entitled to take those nine public holidays off of work and be to paid their “regular wages” and vacation pay for that day.

"Regular Wages"

The ESA provides a complicated formula to determine how much pay an employee is entitled to on a public holiday. Section 24(a) of the ESA prescribes that:

An employee’s public holiday pay for a given public holiday shall be equal to the total amount of regular wages earned and vacation pay payable to the employee in the four work weeks before the work week in which the public holiday occurred, divided by 20

The Ontario Ministry of Labour offers a Public Holiday Pay Calculator for your convenience.

"Premium Pay"

Some employees may be required to work on public holidays, as explained below. In those cases those employees may be entitled “premium pay.” “Premium pay” is defined as 1½ times an employee's regular rate of pay. Therefore, if an employee is entitled to receive premium pay for work on a public holiday, he or she must be paid 1½ times his or her regular rate of pay for each hour worked. This is also known as “time and a half.”

Who Qualifies for Public Holiday Entitlements?

Generally, employees qualify for the public holiday entitlement unless they:

  • are listed as an employee to whom the entitlement does not apply. (To determine whether or not your job is covered by the public holiday rule or if special rules apply, you can either refer to the “Special Rule Tool” published by the Ontario Ministry of Labour or refer to Ontario Regulation 285/01);
  • fail, without reasonable cause, to work all of their last regularly scheduled day of work before the public holiday or all of their first regularly scheduled day of work after the public holiday (see the "Last and First Rule" below); or
  • fail without "reasonable cause" (see below) to work their entire shift on the public holiday if they agreed to or were required to work that day.

Note that most employees who fail to qualify for the public holiday entitlement are still entitled to be paid “premium pay” for every hour they work on the holiday.

The “Last and First Rule”

The “last regularly scheduled day of work before the public holiday” and the “first regularly scheduled day of work after the public holiday” do not have to be the calendar days right before and right after the holiday.

For example, New Years Day is a public holiday and always falls on January 1st. If you are only required to work on December 30th and then January 4th, provided that you work the full day on those two days, then you meet the “last and first rule” and it does not matter that you did not work on either December 31 or January 2.

Reasonable Cause for Missing Work

An employee is generally considered to have “reasonable cause” for missing work when something beyond his or her control prevents the employee from working. Examples include, but are not limited to: absences related to personal emergency leave (i.e. personal illness, injury or medical emergency, and the death, illness, injury, medical emergency or urgent matter relating to certain family members and dependent relatives) as well as absences for family medical leave.

Employees are responsible for showing that they had reasonable cause for staying away from work. If they can do so, they still qualify for public holiday entitlements.

Those Required to Work

Special rules apply to employees who work in the following types of businesses:

  • hotels, motels and tourist resorts;
  • bars and restaurants;
  • hospitals and nursing homes; and
  • “continuous operations” (which are operations, or parts of operations, that do not stop or close more than once a week--such as an oil refinery, alarm-monitoring company or casino whose games tables are open around the clock).

An employee who works in any of these businesses can be required to work on a “public holiday” without his or her agreement, but only if the holiday falls on a day that the employee would normally work and the employee is not on vacation.

If the holiday falls on a day that the employee would not normally work or if the employee is on vacation, then the employee is generally entitled to a substitute day off with public holiday pay.

If an employee is required to work, then he or she is entitled to either:

  • his or her regular rate for the hours worked on the public holiday, plus a substitute day off work with public holiday pay; or
  • public holiday pay plus “premium pay” for each hour worked.

It is the employer that chooses which of these options will apply.

Note that the employer’s ability to require employees to work on a public holiday is subject to the employee’s right to take a day off for purposes of religious observance under the Ontario Human Rights Code, and to the terms of the employee's employment contract.

Certain retail workers who work in continuous operations (e.g., a 24-hour convenience store) have the right to refuse to work on a public holiday because of the special rules that apply to some retail workers.

More Information

The above is but a summary of some of the laws that apply to public holidays in Ontario. For more information about public holidays you may wish to review the information put out by the Ontario Ministry of Labour on the subject: http://www.labour.gov.on.ca/english/es/pubs/guide/publicholidays.php.

For more information about your rights as a worker or your obligations as an employer beyond the summary provided above or by the Ministry, it may be appropriate to seek the advice of an experienced Ontario employment lawyer.

Contact Me

To reach the author of this blog, Sean Bawden, email sbawden@kellysantini.com or call 613.238.6321 x260. You may also use the contact box at the top of this page.

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As always, everyone’s situation is different. The above is not intended to be legal advice for any particular situation. It is always prudent to seek professional legal advice before making any decisions with respect to your own case.

Sean Bawden, publisher of Labour Pains, can be reached by email at sbawden@kellysantini.com or by phone at 613.238.6321.

Sean P. Bawden is an Ottawa, Ontario employment lawyer and wrongful dismissal lawyer practicing with Kelly Santini LLP. He is also a part-time professor at Algonquin College teaching Trial Advocacy for Paralegals and Small Claims Court Practice.



1 comment:

  1. I work in Ontario.

    I work 12 hr shifts. I make 20/hr. What is the better choice when working on a holiday or what factors should I consider? I have 2 options.

    1. Take Time and Half which for 12hr shift would be equivalent to 18hrs plus be paid Holiday Pay which is equivalent to 8hrs. So Essentially 26hrs X 20/hr for that one 12hr shift on a holiday.

    OR

    2. Work on the holiday at regular pay and bank a day off to be used later in which I would receive equivalent of 8hrs. This would only amount to 20hrs at 20/hr and I would have the day in lieu.

    The money says take option one but I think I will be taxed more. What would you do and why? What are the pros and cons for both? Which is the smarter financial decision? Or does it make a difference? What factors should I consider? I want to make the wisest choice that is most beneficial to me either way.

    ReplyDelete