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Changes to Employment Standards Act - January 1, 2018.

The Ontario provincial government is bestowing a belated Christmas gift as of January 1, 2018 which includes some significant changes to the Employment Standards Act. Whether it is a splendid gift or a lump of coal may depend on your perspective.
Effective January 1st the minimum wage goes from $11.60 to $14 an hour, that’s $2.40 more, an extra $96 over a 40-hour work week. It’s $4,992 over the course of a year.
If you are a small business owner with 10 full-time employees that’s $49,920 in extra costs which don’t include increased statutory employer contributions. Small business owners don’t tend to have the vast profits many like to imagine that they do. It is hard to imagine any scenario other than prices increasing for consumers and/or one or two of those 10 employees losing their position as the employer tries to make due with less.
On the other hand, $5,000 can go a long way to lifting individuals and their families out of poverty and improving the lives of many.
That number increases to $15 on January 1, 2019. People who serve liquor will have their minimum wage raised from $10.10 to $12.20 as of January 1st and $13.05 a year later. Students under 18 go from $10.90 per hour to $13.15 January 1st, $14.10 a year later.
Casual, part-time, temporary, and seasonal employees who are doing substantially the same work as full-time permanent employees will have to paid the same rate of pay. In some organizations, part-time employees are paid less than full-time employees just as a matter of course. That is now over. If the difference in pay is based on a seniority or merit system or some measure of the quantity or quality of production, that is okay.
“Substantially” is defined as a “great or significant extent” or “for the most part; essentially”. Claiming that the full-time worker should get a higher hourly rate because they have the keys and open and close the store and count the cash at the end of the day would likely not survive the test since that is but 15 minutes of their day. If the rest of the day is spent doing the same sales associate work as the part-time worker, they will have to be paid the same unless they fit into an exception referred to above.
Up until now, only employers with more than 50 employees have had to provide 10 days of personal leave without pay per year. Now everyone does and two of those days must be paid. That’s an extra cost of $224 per year for every employee that takes at least two emergency leave days.  You cannot ask an employee for a doctor’s note for a personal emergency leave day. All employers will need to keep track, every calendar year, of how many days an employee has taken off and refrain from asking for a doctor’s note until at least the 11th day.
I don’t know how much relief this will provide to embattled doctors who are being constantly asked for notes. Most employers don’t start asking for doctor’s notes until the absences become systemic and repeated.
Where an employee or their child has suffered from domestic or sexual violence, or the threat of those things, they can take up to 17 weeks as a leave of absence with the first five days being paid. The leave may be taken to seek medical attention, to receive services from a Victim Services organization, to get counselling, relocate or seek legal or law enforcement assistance. The five days’ paid leave is in addition to the two days’ paid leave under the emergency leave section. Employers are now potentially on the hook for up to seven paid days of leave per year which are not on the books today. That’s a potential total of $784 per year for an employee earning minimum wage who works eight hours a day. The goals of this legislative change are admirable. Domestic and sexual violence are, as we are learning daily, far more common than we think. There is absolutely nothing in the legislation, however, that tells employers what documentation they can ask for if somebody is taking a leave as a result of domestic or sexual violence issues. I can’t think of what you would ask for anyway. For the unscrupulous, this is an extra week’s paid vacation, but for real victims, this may be a Godsend.
There are far more changes to the Employment Standards Act than I have been able to cover in this article. There are significant costs here for employers and there are some significant benefits for employees. For perspective, keep in mind that when maternity leave legislation was first brought in, many claimed that the sky was falling. It did not.
Ed Canning practices labour and employment law with Ross & McBride LLP, in Hamilton, representing both employers and employees. You can email him at ecanning@rossmcbride.com.
Ed Canning
Ed Canning
P: 905.572.5809