Scheduling of work under the Employment Standards Act, 2000 (“ESA”) is one of several sections in Bill 148 affected by recent amendments.
Currently, the ESA does not regulate an employer’s right to schedule work, aside from providing that an employee who attends a scheduled shift must receive at least three hours’ pay, even if the shift is shorter. Bill 148 not only includes this existing “3-hour rule”, but also expands it considerably, as follows.
Employers will be required to pay employees who are on call a minimum of three hours’ pay at their regular rate if they are not called in, or if they are called in but work less than three hours. Further, employees who are scheduled to work or be on call will be entitled to three hours’ pay at their regular rate if their shift or on-call period is cancelled within 48 hours of its scheduled start time.
Employees will also have the right to refuse an employer’s request or demand to work or be on call when it is made less than 96 hours (i.e., 4 full days) in advance unless it is to:
- deal with an emergency;
- remedy or reduce a threat to public safety; or
- made for such other reasons as may be prescribed.
Consistent with the current ESA, the 3-hour rule will not apply if the employer is unable to provide work because of fire lightning, power failure, storms or similar causes beyond the employer’s control that result in stopping of work. However, the Bill 148 amendments also provide some additional relief for employers, given that the 3-hour rule will not apply if:
- the nature of the employee’s work is weather-dependent and the employer is unable to provide work for the employee for weather-related reasons; or
- the employer is unable to provide work for the employee for such other reasons as may be prescribed.
Bill 148 also gives most employees the right to request a change in schedule or work location. While the employer will not necessarily have to agree such requests, it will nonetheless be required to:
- discuss the request with the employee;
- notify the employee of its decision within a reasonable time; and
- if the request is denied, explain why.
Finally, the amended version of Bill 148 clarifies the extent to which the 3-hour rule applies to unionized workforces. If a collective agreement that is in effect on January 1, 2019 contains a provision that addresses but conflicts with the statutory provision regarding: (1) payment for being on call; (2) payment when the employer cancels an employee’s scheduled day of work of on-call period; or (3) the employee’s ability to refuse a request or demand to perform work or be on call without the required advance notice, then the collective agreement provision will prevail until the earlier of the date the collective agreement expires and January 1, 2020.
If the Scheduling provisions in the amended version of Bill 148 do come into effect, employers will be required to handle scheduling with a considerable degree of foresight to ensure that employees received ample notice of schedules, and to minimize the potentially costly applications of the 3-hour rule. Employers may wish to implement standard processes for how employee requests for scheduling and location changes would be processed, determined and communicated. It would also be prudent to consider contingency plans for instances where an employee is in the position to refuse short-notice shifts.
Bill 148, as amended, was ordered for Second Reading on September 11th and debated for the following two days. We expect that it will pass Second and Third Reading and receive Royal Assent over the next few weeks, particularly since many of its provisions are intended to come into effect by January 1, 2018. Note, however, that the Scheduling provisions would not come into effect until January 1, 2019.