Under the Ontario Employment Standards Act, 2000 (“ESA”) Ontario has nine public holidays: New Year’s Day, Family Day, Good Friday, Victoria Day, Canada Day, Labour Day, Thanksgiving Day, Christmas Day and Boxing Day (December 26).   Nothing in Bill 148 has changed that.

Likewise, an employee who would otherwise be eligible to take the public holiday may still agree to work on it.  The ESA requires the employee’s agreement to be obtained “electronically” (for example, confirmation by email) or “in writing” signed by the employee.

Employees who work on a public holiday are entitled to receive:

  • premium pay at 1.5 times their regular rate for all hours worked on the public holiday, plus public holiday pay, in which case they are not entitled to a substitute holiday;

OR

  • their regular wages for all hours worked on the public holiday, plus a substitute holiday for which they must be paid public holiday pay.

A substitute holiday must be scheduled for a day that is no later than three months after the public holiday for which it was earned.  Alternatively, if the employee has agreed (again “electronically” or “in writing”), the substitute holiday may be scheduled up to 12 months after the public holiday.

So, what’s new?

A Bill 148 reform that took effect on January 1, 2018 imposes a new obligation on employers when an employee working on a public holiday will receive regular wages for that day and a substitute holiday off at a later date.

As a result of Bill 148, the ESA now requires the employer to provide the employee with a written statement containing the following information: (i) the public holiday that is being substituted (i.e., the holiday the employee will be working); (ii) the date of the substitute holiday; and (iii) the date the written statement was given to the employee.  Note that the written statement must be given to the employee before the public holiday.

For further information about Bill 148 amendments and the ESA public holiday provisions, see my January 6, 2018 post on the new formula for calculating public holiday pay.

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