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Lists aren’t just for kids at Christmas: Employers’ (un-fun) to do lists

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Now that we’re well into December, there are two realities that have hit me:

  1. I need to start Christmas shopping, and
  2. Bill 148 has led to a lot of work for a lot of employers.

My nephews are busy writing lists for Santa, so I thought that I would start a list of my own. My list is not as fun as the boys’ lists of Lego and Star Wars gear, but being a grown-up is never as fun, right?

My un-fun list, however, is a good starting point for employers who are facing the reality of number 2 above – Bill 148. With the passage of Bill 148 and the omnibus changes to Ontario’s employment legislation, what does an employer need to do to ensure compliance? Are there any other requirements of which an employer must be mindful at this time of year?

Here’s a practical to-do list for employers to ensure you are up-to-date before the end of the year:

  1. Amend your pregnancy and parental leave policies

For any employees who give birth to or come into custody of a child on or after December 3, 2017, there are extended leave periods. Specifically, parental leave has been extended from 35 to 61 weeks (and from 37 to 63 if no pregnancy leave is taken).  If you have a parental leave policy that contemplates the old leave lengths, they need to be updated. More importantly, if you provide employees with top-ups during their leaves, you will need to reassess the administration of that top-up given the longer leave periods.

  1. Review your call-in pay practices

Bill 148 has also amended the ESA’s call-in/on-call pay provisions and has imposed other minimum pay practices. Specifically, employers will have to pay employees a minimum of 3 hours of pay (at their regular rate) when:

  1. A shift is less than three hours;
  2. An on call employee works less than three hours; and,
  3. There is a cancellation of scheduled work or an on-call shift with less than 48 hours’ notice.

There are few specific exceptions to the above rules, which will relieve an employer from paying an employee the minimum 3 hour pay in certain circumstances. For more details on these provisions and the exceptions, please see our November Employers’ Alert.

While these specific changes do not come into force until January 1, 2019, they remain important for employers to plan for and consider in the new year.

  1. Assess your pay tiers

The minimum wage will move from $11.60 to $14 on January 1, 2018, which is the largest jump in the minimum wage rate in recent memory. If you have employees below the minimum wage threshold, their wages must be increased. For many employers, this will also cause a reverse trickle-down (a trickle –up?) effect. The wage rates of junior supervisors will need to increase to balance out the compensation rates. Employers should also plan a year ahead, given the next increase to a $15 minimum wage effective January 1, 2019.

  1. Reconsider whether any of your contractors are truly employees

There have always been indirect sanctions for misclassifying employees as contractors.  However, Bill 148 now cites the misclassification of employees as an explicitly prohibited practice. Further to this, the burden of proving a worker’s status now rests on the employer and not the employee. If you currently have a roster of workers that you call “contractors” but who might be employees (e.g. they work at your office, they work full-time, they receive benefits, etc.), you should revisit your relationships with them and consider re-characterizing them as employees. This amendment came into force on November 27, 2017.

  1. Check employees’ vacation entitlements

As of the new year, employees with five or more years of service will be entitled to a minimum of three weeks of annual vacation time with 6% vacation pay. Employers should check their vacation policies and payment records to ensure that they are in compliance with the new requirements. As with the increase in minimum wages, the increased vacation time based on service (and not status or merit) may have an impact on how employees perceive their overall compensation package in comparison to their colleagues.

  1. Update your recordkeeping protocol

As a result of the new legislation, employers must keep more records and they must be kept longer. In addition to previous requirements, starting on January 1, 2018, employers must also keep:

  • All dates and hours worked for all employees, including where an employee has two or more regular rates of pay;
  • Records of substitute holidays taken;
  • Documents pertaining to all leaves;
  • Records of all vacation time and vacation pay provided; and
  • Dates and times of work and on-call schedules, any changes made to these schedules, and cancellations made to scheduled days of work or scheduled on call shifts.
  1. Revise your sick day policies

Many employers have policies that provide for paid sick days or protocols for taking time off for illness. These policies must be revised in light of the new personal emergency leave provisions which come into effect on January 1, 2019. The new personal emergency leave provision states that:

  • all employees (not just those employed by employers with 50 or more employees) may take up to ten personal emergency leave days per year; and
  • two of those days must be paid.

Employers should consider whether employees will receive two paid personal emergency leave days and in addition to what is already provided. Further, employers may need to expand the list of reasons and lower the requirements for taking sick days if they wish these two days to be subsumed in “sick days”. To avoid confusion and manage employee expectations, any distinctions between sick and personal emergency days (including reasons for taking them) ought to be clearly articulated in the policy.

  1. Revisit dress code policies

There was also an amendment to the Occupational Health and Safety Act (“OHSA”), which now states that an employer is not allowed to require employees to wear footwear with elevated heels, unless it is required for the worker to perform his or her work safely. There is however an exception to this prohibition, which applies to employers or performers in the entertainment and advertising industry.

  1. Complete another AODA report

In addition to the Bill 148 updates, there is another end-of-year check for employers.  The accessibility compliance report mandated under the Accessibility for Ontarians with Disabilities Act, 2005 (“AODA”) is a year-end compliance requirement mandating employers (including non-profit organizations) with 20 or more employees and all public sector organizations to file an accessibility compliance report by December 31, 2017. Although many Ontario employers have not yet achieved compliance and there is little known about non-compliant employers actually being sanctioned, employers should nonetheless get into the habit of completing this annual report. For instructions on how to complete this report, please see the Ontario government website here.

Drafting a to-do list is never as fun as drafting a list for Santa, but the Bill 148 and AODA requirements have left employers with a ton of work before the end of the year. Ensuring compliance with the above-noted changes and requirements will guard against potential ESA, OSHA and AODA sanctions.

Jennifer Heath

About the Author: Toronto Employment Lawyer Jennifer Heath is an enthusiastic lawyer who is dedicated to improving the health and productivity of her clients’ workplaces. Jennifer advises clients on a wide range of common law, contractual and statutory obligations, including those obligations under the Employment Standards Act, 2000Labour Relations Act and the Human Rights Code.  Her work also involves representing clients before the Superior Court of Justice, the Small Claims Court, the Human Rights Tribunal and the Ontario Labour Board.