As 2020 quickly approaches, there are a number of upcoming statutory holidays that would trigger obligations of employers to their employees. Below, we have summarized some the most important obligations of provincially regulated employers in Alberta, British Columbia, Ontario and Quebec, as well as federally regulated employers, to their employees with respect to the upcoming statutory holidays.

Which Days?

Christmas, Boxing Day and New Year’s Day

Every jurisdiction in Canada recognizes Christmas Day (December 25) and New Year’s Day (January 1) as statutory holidays. However, only Ontario (under the Employment Standards Act, 2000) and the federal government (under the Canada Labour Code) recognize Boxing Day (December 26) as a statutory holiday.

Non-Statutory Religious Holidays

Although employees are not automatically entitled to pay for time taken off for non-statutory religious holidays, employers should be mindful of their duty to accommodate employees for religious holidays under applicable human rights legislation.

By way of example, the Ontario Human Rights Tribunal in Markovic v Autocom Manufacturing Ltd. provided useful guidance on the extent of employer’s duty to accommodate employees for non-statutory religious holidays.[1] Markovic involved a human rights complaint in which the employee alleged that his employer had discriminated against him on the basis of his creed by failing to pay him for the time he took off work for Eastern Orthodox Christmas on January 7, 2004. The employer subsequently developed a policy for responding to employee requests to take time off for religious holidays. The question in front of the Tribunal was whether the policy satisfied the employer’s accommodation obligations under the Ontario Human Rights Code.

Answering the question in the positive, the Tribunal concluded from a review of the relevant case law that providing a process for employees to arrange for time off for religious observances through options for scheduling changes, without loss of pay, fulfills the employer’s duty to accommodate. For more context, the options provided in the policy in question included making up for the time on a later date that is a secular holiday or when the employee would not ordinarily be scheduled to work and being paid for the substituted shift or working hours, switching shifts with another employee and being paid for the substituted shift, adjusting the employee’s shift schedule where possible, using any outstanding paid vacation for the time off, or taking a leave of absence without pay.

Eligibility and Pay

Jurisdiction Who is eligible? How much to pay?
Federal

Under the Canada Labour Code, employees are entitled to be paid for prescribed statutory holidays, including Christmas, Boxing Day and New Year’s Day. Alternatively, employees may add this day to their annual vacation or may take it at a time convenient to both the employee and the employer.

However, an employee is not entitled to holiday pay if they do not report for work after having been called to work on that day, or for which they make themselves unavailable to work when the conditions of the employment in the industrial establishment in which they are employed require them to be available or allow them to make themselves unavailable.

This last rules only applies to employees who are employed in a continuous operation, which include:

a) any industrial establishment in which, in each seven-day period, operations once begun normally continue with cessation until the completion of the regularly scheduled operations for that period;

b) any operations or service concerned with the running of trains, planes, ships, trucks or other vehicles, whether in schedules or non-scheduled operations;

c) any telephone, radio, television, telegraph or other communication or broadcasting operations; and

d) any operation or service normally carried on without regard to Sundays or general holidays.

Holiday Pay

An employer shall pay its employee holiday pay equal to or greater than their daily wages, calculated by taking one twentieth of the wages, excluding overtime pay, that the employee earned during the four week before the holiday week.

Additional Pay for Holiday Work

If an employee is required to work on a holiday, in addition to the holiday pay, the employer shall pay the employee wages at a rate equal to at least one and one-half times their regular rate of wages for the time that they work on that day. An employee employed in a continuous operation who is required to work on the holiday will be paid the additional pay, given a holiday with pay at some other time, or be paid holiday pay for the first day on which they do not work after that day if their collective agreement so provides.

British Columbia

To be eligible for holiday pay, an employee must have been employed by the employer for at least 30 calendar days before the holiday, and:

a) has worked or earned wages for 15 of the 30 calendar days preceding the holiday; or

b) has worked under an averaging agreement under the Employment Standards Act of BC at any time within that 30 calendar day period.

Employee not Working on a Holiday

An employee who is given a day off on a statutory holiday or is given another day off in substitution for a holiday must be paid an amount equal to at least an average day’s pay, which is calculated by dividing the amount paid or payable to the employee for work done during and wages earned within the 30 calendar days before the holiday (including vacation pay) less any overtime pay, by the number of days the employee has worked or earned wage within that 30 day period.

This average day’s pay applies whether or not the holiday falls on the employee’s regularly scheduled day off.

Employee Working on a Holiday

If an employee works on a holiday, they must be paid  1 ½ times their regular wage for the first 12 hours worked, and double the regular wage for any time worked up to 12 hours, as well as an averaged day’s pay determined using the formula above.

Alberta To be eligible for holiday pay, an employee must have worked for the employer for 30 work days or more in the 12 months preceding the holiday. An employee is not entitled to general holiday pay if the employee does not work on a holiday when required or scheduled to so, or is absent from employment without the consent of the employer on the work day before or after a holiday.

Holiday Falls on a Regular Day of Work: Employee works on the holiday

If a holiday falls on a regular work day* and the employee works on the holiday, then the employee is entitled to general holiday pay of an amount that is equal to: (1) at least their average daily wage and an amount that is at least 1.5 times their wage rate for each hour worked on that day, or (2) the standard wage rate for each hour worked on the holiday and a day off with pay where the pay is at least as much as their average daily wage.

Holiday Falls on a Regular Day of Work: Employee does not work on the holiday

If the holiday falls on a regular day of work and an employee doesn’t work on the holiday, then the employee is entitled to general holiday pay of an amount that is at least their average daily wage.

Holiday Falls on a Non-Regular Work Day: Employee works on the holiday

If an employee works on a holiday that is not considered a regular work day, then the employee is entitled to general holiday pay of an amount that is equal to at least 1.5 times their wage rate for each hour worked on that day.

Holiday Falls on a Non-Regular Work Day: Employee does not work on the holiday

If the holiday falls on a non-regular day of work and an employee doesn’t work, they are not entitled to general holiday pay.

Holiday During Annual Vacation

If an eligible employee is on vacation when a general holiday occurs, the employee can either: (1) take off with pay the first scheduled working day after their vacation; or (2) in agreement with their employer, take another day that would otherwise have been a work day before their next annual vacation.

* A regular day of work is every workday in an employee’s normal schedule: if the employee works the same days every week, those days are considered their regular days of work. Other days are not regular days of work.

Ontario An employee is not eligible for holiday pay if he or she fails, without reasonable cause, to work on the work day before or after the holiday.

An employee’s holiday pay is generally calculated by dividing the total amount of regular wages earned and vacation pay earned in the four weeks before the holiday week by 20.

Holiday Falling on a Work Day

If a holiday falls on an ordinary work day for an employee and they are not on vacation, the employer must give the employee the day off and pay him the holiday pay.

If the employee and employer agree for the employee to work on the holiday, the employer shall pay the employee their regular wages for the hours worked, and substitute a working day for the holiday and pay the employee holiday pay for the substituting day. The day substituting for the holiday must be within three months after the holiday or, if the employee and employer agree, within twelve months after the holiday. The employer must also provide the employee before the holiday a written statement that sets out the holiday that is being substituted, the date of the substituting day and the date on which the statement is provided to the employee. Alternatively, if the employee and employer agree, the employer can instead pay the employee holiday pay for the day plus premium pay for each hour worked.  Premium pay is an amount that is at least one and one half times the employee’s regular rate. The legislation also prescribes specific calculation methods and entitlements to holiday pay if the employee fails to perform the work that they agreed to perform on the holiday.

Holiday Not Falling on a Work Day

If a holiday does not fall on an ordinary work day or falls on a vacation day for an employee, the employer must substitute another work day for the holiday and pay the employee holiday pay for the substituting day. The day substituting for the holiday must be within three months after the holiday or, if the employee and employer agree, within twelve months after the holiday.  The employer must also provide the employee before the holiday a written statement that sets out the holiday that is being substituted, the date of the substituting day and the date on which the statement is provided to the employee.

Alternatively, if the employee agrees, the employer may pay the employee holiday pay for the holiday instead of substituting another day for the holiday.

If the employee and employer agree for the employee to work on the holiday, the employer must pay the employee his regular wages for the hours worked, and substitute another work day for the holiday and pay holiday pay for the substituting day.  The same written requirements and restrictions regarding the substitution would apply.  Alternatively, if the employee and employer agree, the employer can pay the employee holiday pay for the day plus premium pay for each hour worked. The legislation also prescribes specific calculation methods and entitlements to holiday pay if the employee fails to perform the work that they agreed to perform on the holiday.

Quebec An employee is not entitled to holiday pay if the employee has been absent from work without the employer’s authorization or without valid cause on the working day before or after the holiday.

The holiday pay for each statutory general holiday must be 1/20 of the wages the employee has earned during the four complete weeks of pay before the week of the holiday, excluding overtime.

Employee Working on Holiday

If an employee must work on a holiday, the employer must pay the employee his regular wages plus the holiday pay, or grant them a compensatory holiday, which must be taken within the three weeks before or after the holiday unless a collective agreement or a decree provides for a longer period.

Holiday Falling on Non-Work Day or Annual Leave

If a holiday falls on a non-work day or annual leave of an employee, the employer must pay the employee the holiday pay or grant them a compensatory holiday on a date agreed upon between the employer and the employee or fixed by a collective agreement or a decree.

Provisions regarding statutory holiday entitlements and payments may apply differently to employers who are party to collective agreements as well as employers in specific sectors. For example, Ontario has specific provisions regarding hospitals, continuous operations, hotels, motels, tourist resorts, restaurants, and taverns. The methods of calculation for holiday pay may also vary if employees are remunerated by commission or other incentive pays.

Happy Holidays!

The authors would like to thank Simon Gollish, articling student in Ottawa, for his contribution to this publication.

[1] Markovic v Autocom Manufacturing Ltd, 2008 HRTO 64 [Markovic].

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