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What Does Bill 47 Mean for Business?

Posted 4 years ago on · 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.