What Does Bill 47 Mean for Business?

Posted 4 years ago on Thursday, November 1st, 2018 · Permalink

AJAX/PICKERING, November 1, 2018 – The Ontario Government recently introduced Bill 47, Making Ontario Open for Business Act, 2018. The government states that the purpose of the act, which comes hand-in-hand with the full repeal of Bill 148, is to make it easier for Ontario employers to hire and make it easier for workers to find jobs and grow their careers.

To read the bill and see its current status, you can click here.

The chart below, provided by Wilson Vukelich LLP, details how Bill 47 will impact the changes previously made to the Employment Standards Act as a result of Bill 148, as well as some of the other impacts of the proposed legislation.

	Pre-Bill 148	Under Bill 148	Effective Date Under Bill 148	Under Bill 47	Practical Recommendations
Misclassifying employees as contractors	N/A	It is a violation of the ESA to misclassify an employee as being self-employed. The burden is on the employer to establish there was no misclassification.	Nov. 27, 2017	The violation provision will remain in place. However, the burden of proof will not necessarily be placed on the employer.	Employers should take the time to review its contractor relationships, including whether there are written agreements and whether the facts support that each is a contractor relationship.
Extended Parental Leave	Employees were entitled to 35 weeks parental leave if they took pregnancy leave and 37 weeks parental leave if they did not take pregnancy leave.	Employees are now entitled 61 weeks parental leave if they take pregnancy leave and 63 weeks parental if they do not take pregnancy leave. For employees who became a parent before December 3rd, parental leave still must begin within 52 weeks of the employee becoming a parent.	Dec. 3, 2017	Unchanged. Continued obligation and entitlement.	Employers should request that the employee advise of the expected return date, before the employees commences their pregnancy and/or parental leave. Of course, with notice, the employee may change the return date later on. This initial notice though, should assist in planning.
Family Medical Leave	Up to 8 weeks of unpaid Family Medical Leave (“FML”) in a 26 week period to provide care and/or support to a prescribed family member who is at significant risk of death within that 26 week period.	The FML was extended to 28 weeks in a 52 week period, which is reflective of the new federal Employment Insurance regime.	Dec. 3, 2017	Unchanged. Continued obligation and entitlement.	Employers should be mindful that under the Human Rights Code, they also have an obligation to accommodate and provide a leave, if so required due to family status.
Minimum Wage	For several years, minimum wage has been tied to inflation, with the new minimum wage being announced each April and taking effect in October. The general minimum wage was increased to $11.60 per hour on October 1, 2017.	On January 1, 2018 the general minimum wage was increased to $14.00 per hour and on January 1, 2019 it will be further increased to $15.00 per hour. There are separate categories of minimum wage for those who serve liquor, students under 18, and others.	Jan. 1, 2018 and Jan. 1, 2019	The increase to $14.00 per hour will be maintained. Minimum wage will now be frozen until 2020, at which time it will go back to the practice of rising with inflation.	These amendments may also impact pay discussions with employees who are paid close to minimum wage, as they may expect the pay gap to be maintained. As such, employers should be ready to discuss.
Vacation Pay	2 weeks’ vacation and 4% wages as vacation pay per year.	For employees whose current period of employment (including active and inactive) is 5 years or more, then they are entitled to 3 weeks’ vacation and 6% wages as vacation pay per year.	Jan. 1, 2018	Unchanged. Continued obligation and entitlement.	Employers may wish to schedule a vacation week during a partial or full scheduled shutdown. In addition, in order to reduce your company’s vacation pay obligations, employers may wish to base vacation pay on 4% or 6% of earned wages, as opposed to being based on expected salary.
Holiday Pay	Non-salaried employees were paid an average of their daily wage, which was calculated by dividing their earnings during the past 4 weeks by 20.	Public Holiday Pay will be calculated by dividing the employee’s earnings during the last pay period by the number of days worked in the pay period.	Jan. 1, 2018	In May, regulation was introduced to revered back to the original calculation method as of July 1, 2018. The old calculation method will remain in place.	Employers should be careful to ensure that New Year’s Day, Family Day, Good Friday, and Victoria Day 2018 were all paid under the temporary Bill 148 holiday pay calculation method.
Overtime Pay	For employees with two rates of pay, overtime pay is based on the employee’s average wage.	Overtime pay now needs to be calculated based on the regular rate of pay for the work being performed after the overtime threshold is reached.	Jan. 1, 2018	Unchanged. Continued obligation and entitlement.	For employees who are paid two rates of pay, employers may wish to schedule the high rate work earlier in the week.
Personal Emergency Leave (PEL)	10 unpaid days, per calendar year, due to an illness, injury, or medical emergency or a death, illness, injury, or medical emergency of a prescribed family member (e.g. spouse, parent, child, etc.).	2 paid days and 8 unpaid days, per calendar year, due to an illness, injury, or medical emergency or a death, illness, injury, or medical emergency of a prescribed family member (e.g. spouse, parent, child, etc.), after 1 week of employment. An employer cannot require a medical note for the employee to take a PEL, but may require any reasonable documentation. Reasonable documentation can include a medical note or another type of document (e.g. an obituary).	Jan. 1, 2018	Repealed in its entirety including pre- Bill 148 language) and replaced with three new unpaid leaves: 1) 3 annual unpaid personal illness days 2) 3 annual unpaid family responsibility days 3) 2 annual unpaid bereavement days. Conditional on the employee having 2 weeks’ of service. No prohibition on asking for a medical note as reasonable supporting documentation.	In order to ensure that PEL entitlements are not abused, it may be recommended for employers to use a PEL Request Form. The Form would require that the employee provides sufficient details (e.g. who passed away), the PEL start date, the PEL end date, and attach the reasonable documentation. The Form should also address whether the cause for the leave could be accommodated in the workplace.
Domestic Violence and Sexual Violence Leave	N/A	Employees who have personally experienced or whose child has experienced harm as a result of domestic or sexual violence up to 10 days and up to 15 weeks of leave per calendar year, the first 5 days of which shall be paid. In order to be entitled to this leave, the employee must have been employed for at least 13 consecutive weeks.	Jan. 1, 2018	Unchanged. Continued obligation and entitlement.	Employers should be mindful that under the Human Rights Code, they also have an obligation to accommodate and provide a leave, up to the point of undue hardship, if so required due to family status or disability (e.g. mental health issue).
Child Disappearance or Death	Employees with at least 6 months of service are allowed an unpaid leave with respect to a crimerelated disappearanc e or death of an employee’s child. The length of the leave is 52 weeks if the child disappears and 104 weeks if the child dies.	Two separate child related leaves (one for crime-related disappearances and one for deaths), each of which will be capped at 104 unpaid weeks of leave.	Jan. 1, 2018	Unchanged. Continued obligation and entitlement.	Employers should be mindful that under the Human Rights Code, they also have an obligation to accommodate and provide a leave, up to the point of undue hardship, if so required due to family status or disability (e.g. mental health issue).
Equal Pay	N/A	An equal pay obligation will be established, whereby employees performing substantially the same work must be paid the same rate of pay, unless based on a seniority system, a merit system, and quantitative or quality of production system, or other objective and nondiscriminatory system.	April 1, 2018	Repealed. No remaining obligation or entitlement.
Equal Pay for Temporary Workers	N/A	Assignment employees must be paid a rate of pay equal to the rate paid to comparable employees of the temporary agency’s client. The agency’s client cannot lower its rate of pay to its employees, in order to reduce the amount to be paid to the assignment employees.	1-Apr-18	Repealed. No remaining obligation or entitlement.
Minimum Shift Pay	N/A	Employees will be entitled to a minimum of 3 hours’ pay if they normally work more than 3 hours a day and are sent home after working less than 3 hours.	Jan. 1, 2019	Unchanged. Future obligation and entitlement.	The minimum pay obligations can be best addressed by: – cancelling any shifts prior to the worker reporting to work, in order to avoid the 3 hour minimum shift pay; – properly assessing whether there is no minimum pay obligation as the work was cancelled due to weather, electrical issues, or other similar issues beyond the employer’s control; and – sorting out scheduling to avoid overstaffing or shifts shorter than 3 hours.
Minimum On- Call Pay	N/A	On-call employees will be paid the greater of: i) their hourly rate for each hour of on-call time worked; and ii) 3 hours of pay per 24 hours on-call.	Jan. 1, 2019	Repealed. No remaining obligation or entitlement.
Shift Scheduling and Workplace Location	N/A	After 3 months of employment, an employee may request in writing a dialogue with their employer about their schedule or work location. The employer is then to discuss the request and provide a response within a reasonable time. If the employer denies the request, the employer must provide an explanation for the denial.	Jan. 1, 2019	Repealed. No remaining obligation or entitlement.	When considering a schedule or work location request, employers should be mindful that they still have an obligation to accommodate based on certain grounds under the Human Rights Code, up to the point of undue hardship.