Bill 148 – Changes for Employers and Employees

Bill 148 – Changes for Employers and Employees

Derek Sinko

Bill 148 – the Fair Workplaces, Better Jobs Act, 2017 – received Royal Assent on November 27, 2017. Bill 148 amends the Employment Standards Act, 2000 (the “ESA”), the Labour Relations Act, 1995 and the Occupational Health and Safety Act (the “OHSA”).

The OHSA was amended, effective immediately, to prohibit an employer from requiring an employee to wear footwear with an elevated heel unless it is required for the worker to perform his or her work safely. Exceptions apply for performers in the entertainment and advertising industry, which are defined terms.

The ESA was amended with the changes to take effect at various times. Effective immediately is the prohibition on misclassifying an employee as an independent contractor. Employers now also have the onus to prove that an individual is an independent contractor and not an employee. Amendments regarding parental and critical illness leaves took effect December 3, 2017.

Additional record keeping obligations are placed on employers, which add to the existing obligation to keep records of the number of hours that employees work in each day and in each week. Beginning January 1, 2018, employers must keep records of the dates and times employees work, and the amount of vacation pay that the employee earned during the vacation entitlement year and how that amount was calculated. The record retention period for vacation time and vacation pay also increases from 3 years to 5 years. Beginning January 1, 2019, employers must keep records of the dates and times that an employee was scheduled to work or to be on call, and any changes made to the on call schedule. The date and time of any cancellation (which does not include a shortening or lengthening of a shift) of a scheduled day of work or scheduled on call period must all be recorded.

Changes to vacation entitlement take effect January 1, 2018. Employees with five or more years of service are entitled to 3 weeks of vacation and 6% vacation pay. In accordance with previous provisions, both active and inactive employment (e.g. time spent on leave) must be included in determining an employee’s years of service.

The amendments to scheduling will take effect January 1, 2019. Employees with at least 3 months of service can submit, in writing, a request for a change to their schedule or work location. Employers must discuss the request with the employee and notify the employee of a decision within a reasonable time. If the request is granted, or granted in part, the notification must specify the date the change will take effect and the duration. If the request is denied, or denied in part, the notification must include the reasons for denial.

Minimum on call pay and minimum cancellation pay provisions take effect January 1, 2019. There are limited exceptions to these provisions for employees who provide emergency services, where the nature of the employee’s work is weather dependent and the employer is unable to provide work for weather related reasons, or where the employer is unable to provide work because of fire, lightning, power failure, storms, or other similar causes beyond the employer’s control.

If you have questions about how the changes apply to your business, consult with your local business law and employment law lawyers.

Communications on this website are intended for information purposes only and do not constitute legal advice or an opinion on any issue. Readers are cautioned against making any decisions based on this material alone. The lawyers of Waterous Holden Amey Hitchon LLP would be pleased to provide additional details or advice about specific situations.