Ontario

Labor Compliance Guide

Hours & Pay Regulations

Normal Working Hours

The maximum number of hours most employees can be required to work in a day is eight hours or the number of hours in an established regular workday if it is longer than eight hours. The only way the daily maximum can be exceeded is by an electronic or written agreement between the employee and employer.

 

The maximum number of hours most employees can be required to work in a week is 48 hours. The weekly maximum can be exceeded only if there is an electronic or written agreement between the employee and employer and the employer has received the approval of the Director of Employment Standards. However, the Employment Standards Act (ESA) provides a limited exception where an application for approval is pending. If, after 30 days after serving an application for excess hours on the Director, the employer has not received an approval or notice of refusal, the employer may require employees to start working more than 48 hours as long as certain conditions are met including, the employee does not work more than 60 hours in a work week or the number of hours the employee agreed to in electronically or writing, whichever is less.

 

Time spent by an employee in training that is required by the employer or by law is counted as work time. Time spent in training that is not required by the employer or by law in order for an employee to do his or her job is not counted as work time. Employment Standard Act, § 17.

 

Meaning of Workweek

A “workweek” is a recurring period of seven consecutive days selected by the employer for the purpose of scheduling work, or if the employer has not selected such a period, a recurring period of seven consecutive days beginning on Sunday and ending on Saturday. If an employer does not provide at least 24 consecutive hours off work in a particular workweek, the employer must provide at least 48 consecutive hours off work in each two-week period that contains that particular work week. Employment Standard Act, § 18(1-4).

 

Amendment to Section 17(3) and 17(4): Hours in a Workweek – Substituted with below paragraph

An employee’s hours of work may exceed the limit if 48 hours, if the employee has made an agreement with the employer that he or she will work up to a specified number of hours in a workweek in excess of the limit and his or her hours of work in a workweek, do not exceed the number of hours specified in the agreement. Bill 66 allows employers to enter into agreements with employees to average hours of work for periods of up to four weeks in order to determine entitlement to overtime pay.

 

Averaging Agreement – Amendment to Section 22(2), (2.1), 22(3), (3.1) and 22(4)

An employee’s hours of work may be averaged over separate, non-overlapping, contiguous periods of two or more consecutive weeks for the purpose of determining the employee’s entitlement, if any, to overtime pay if:

      • The employee has made an agreement with the employer that his or her hours of work may be averaged over periods of a specified number of weeks; and
      • The averaging period does not exceed four weeks or the number of weeks specified in the agreement, whichever is lower.

An averaging agreement is not valid unless it provides for a start date and an expiry date. If the employee is not represented by a trade union, the averaging agreement’s expiry date will not be more than two years after the start date. If the employee is represented by a trade union and a collective agreement applies to the employee, an averaging agreement will expire no later than the day a subsequent collective agreement that applies to the employee comes into operation.

Overtime

For most employees, whether they work full-time, part-time, are students, temporary help agency assignment employees, or casual workers, overtime begins after they have worked 44 hours in a work week. Their hours after 44 must be paid at the overtime pay rate.

Overtime pay is 1½ times the employee’s regular rate of pay. Unless a contract of employment or a collective agreement states otherwise, an employee does not earn overtime pay on a daily basis by working more than a set number of hours a day. Overtime is calculated only:

      • On a weekly basis; or
      • Over a longer period under an averaging agreement.

Managers and supervisors do not qualify for overtime if the work they do is managerial or supervisory. Even if they perform other kinds of tasks that are not managerial or supervisory, they are not entitled to get overtime pay if these tasks are performed only on an irregular or exceptional basis.

Some employees have jobs where they are required to do more than one kind of work. Some of the work might be specifically exempt from overtime pay, while other parts might be covered. If at least 50 percent of the hours the employee works are in a job category that is covered, the employee qualifies for overtime pay.

An employee who is paid on an hourly basis may perform, in one work week, two types of work, each of which attracts a different hourly rate. In that case, the employee has two regular rates and, as a result, the overtime rate for each hour of overtime is based on the regular rate that applies to the work performed in that hour.

An employee and an employer can agree electronically or in writing that the employee will receive paid time off work instead of overtime pay. This is sometimes called “banked” time or “time off in lieu.” If an employee has agreed to bank overtime hours, they must be given 1½ hours of paid time off work, at the applicable overtime rate, for each hour of overtime worked. Paid time off must be taken within three months of the week in which the overtime was earned or, if the employee agrees electronically or in writing, it can be taken within 12 months. Employment Standard Act, § 20.

On December 6, 2018, the Ontario government introduced Bill 66, Restoring Ontario’s Competitiveness Act, 2018 (Bill 66). Bill 66 proposes changes to, among other things, Ontario’s Employment Standards Act, 2000 (ESA). Bill 66, Restoring Ontario’s Competitiveness Act, 2018, has received royal assent on April 3, 2019, and is now law. Below is an overview of the changes that Bill 66 makes to the Employment Standards Act, 2000 (ESA).

Need for Approval of the Director of Employment Standard Eliminated

Bill 66 removed the requirement for employers to obtain approval from the Director of Employment Standards in order to enter into agreements to allow employees to work weekly hours in excess of 48 hours, and enter into overtime averaging agreements.

Breaks

An employee must have at least 11 consecutive hours free from performing work in each “day.” This requirement does not apply where an employee is on call and is called into work during a period he or she would not otherwise have been expected to work.

The Employment Standards Program uses the following interpretation of “day” for purposes of the 11-hour rule:

      • The first “day” for an employee starts at the beginning of his or her first shift in each “work cycle” and ends 24 hours later.
      • The second “day” begins with the first moment of work that is performed after the first “day” ends.

Rest between Shift

Employees must, with two exceptions, receive at least eight hours free from work between shifts, whether they are “split shifts,” “on-call shifts,” “back-to-back” shifts or ordinary daily shifts. Rest between shifts is not required if:

        • The total time worked during both shifts does not exceed 13 hours; or
        • The employer and employee agree electronically or in writing to reduce or forego the eight-hour rest period.

Weekly or Biweekly Free Time 

An employee must receive at least:

          • 24 consecutive hours off work in each work week, or
          • 48 consecutive hours off work in every two consecutive work weeks.

Public Holidays

Ontario has nine public holidays:

      • New Year’s Day
      • Family Day
      • Good Friday
      • Victoria Day
      • Canada Day
      • Labour Day
      • Thanksgiving Day
      • Christmas Day
      • Boxing Day (December 26)

Most employees who qualify are entitled to take these days off work and be paid public holiday pay. Alternatively, the employee can agree electronically or in writing to work on the holiday and be paid:

        • Public holiday pay plus premium pay for all hours worked on the public holiday and not receive another day off (called a “substitute” holiday); or
        • Be paid their regular wages for all hours worked on the public holiday and receive another substitute holiday for which they must be paid public holiday pay.

Calculation of Public Holiday Pay

The employee’s public holiday pay for a given public holiday shall be equal to the total amount of regular wages earned and vacation pay payable to the employee in the four work weeks before the work week in which the public holiday occurred, divided by 20.

 

If the public holiday occurs between January 1, 2018, and June 30, 2018, the amount of public holiday pay to which an employee is entitled is all of the regular wages earned by the employee in the pay period before the public holiday, divided by the number of days the employee worked in that period. Ontario Regulation 375/18 ef. Dt. July 2018.

 

The “Last and First Rule”

The “last regularly scheduled day of work before the public holiday” and the “first regularly scheduled day of work after the public holiday” do not have to be the days right before and right after the holiday.

Annual Leave

Employees with less than five years of employment are entitled to 2 weeks of vacation time after each 12-month vacation entitlement year. Employees with five or more years of employment are entitled to 3 weeks of vacation time. Ordinarily, a vacation entitlement year is a recurring 12-month period beginning on the date of hire. Where the employer has established an alternative vacation entitlement year that begins on a date other than the date of hire, the employee is also entitled to a pro-rated amount of vacation time for the period (called a “stub period”) that precedes the alternative vacation entitlement year.

 

Vacation pay must be at least four percent of the gross wages (excluding any vacation pay) earned in the 12-month vacation entitlement year or stub period (where that applies) for employees with less than five years of employment. Employees with five or more years of employment at the end of a 12-month vacation entitlement year or stub period (if any) are entitled to at least six percent of the gross wages earned in the 12-month vacation entitlement year or stub period.

 

Alternative Vacation Entitlement Year

If an employer sets an alternative vacation entitlement year, the employee will be entitled to a pro-rated amount of two weeks’ vacation for the stub period preceding the start of the first alternative vacation entitlement year. The employee will then be entitled to a minimum of two weeks of vacation time after completing each alternative vacation entitlement year until the employee reaches the five-year employment threshold.

Minimum Wage

The minimum wage has been raised to $15 on January 1, 2019. Effective Oct. 1, 2020, the minimum wage will be subject to an annual inflation adjustment on Oct. 1 of every year. Employment Standards Act, 2000, S.O. 2000, ch. 41, § 23; Minimum Wage Rates; Fair Workplaces, Better Jobs Act, 2017.

Meal Breaks

Most employees are entitled to an uninterrupted 30-minute eating period after no more than 5 consecutive hours of work. An employer and employee may agree orally, electronically or in writing that the eating period will be split into two periods. If so, these two periods must total at least 30 minutes, and both must be taken within every consecutive five-hour period.

 

Eating periods are unpaid unless the employee’s employment contract requires payment. Whether the eating period is paid or not, the employee must be free from work during the 30 minutes.

 

Coffee Breaks

The ESA does not require an employer to provide any breaks in addition to eating periods. However, if the employer does provide another type of a break, such as a coffee break, and the employee must remain at his or her work during the break, this time is considered to be working time under the ESA. Employment Standard Act, § 20.

Special Leave

Pregnancy Leave

Bill 148 which was passed on January 1, 2018, extended the Pregnancy leave for the employees:

      • Whose child is not yet born at the end of the 17 weeks of pregnancy leave;
      • Who have a stillbirth or miscarriage; or
      • Whose child dies during the pregnancy leave.

Employees who are not entitled to a parental leave can get an extension to the pregnancy leave and the end date falls on the later of:

        • 17 weeks after the pregnancy leave began; or
        • 12 weeks (increased from six weeks) after the birth, stillbirth or miscarriage.

The Bill also clarified as to who qualifies as a “legally qualified medical practitioner”. Employers are permitted to request a certificate from such persons as proof of the employee’s entitlement to Pregnancy Leave or the timing of that leave. Employment Standards Act, 2000, S.O. 2000, ch. 41, §§ 46-47; Fair Workplaces, Better Jobs Act, 2017.

Parental Leave

The employees are entitled to take an unpaid leave of:

          • Up to 61 weeks of parental leave, if the employee took a Pregnancy Leave; or
          • Up to 63 weeks of parental leave if the employee did not take a Pregnancy Leave.

Prior to the changes brought about by Bill 148, employees in Ontario were entitled to Parental Leave of 35 weeks if the employee took a Pregnancy Leave or 37 weeks if the employee did not take a Pregnancy Leave. Parental Leave as per the Bill 148 passed on January 1, 2018, applies where the child in respect of whom the employee takes Parental Leave was born or came into the employee’s custody, care and control for the first time on or after December 3, 2017. For all other employees, the Parental Leave applicable prior to December 3, 2017, applies.  Employment Standards Act, 2000, S.O. 2000, ch. 41, §§ 48-49.

Domestic Violence Leave

Bill 148 which was passed on January 1, 2018, introduced a new leave wherein in each calendar year, an employee may take up to 10 days of leave and/or take up to 15 weeks of leave as well. The first 5 days of leave in each calendar year under this entitlement are paid. The leave may only be taken for a reason relating to the violence or threat of violence against the employee or the employee’s child, including:

            • Seeking medical attention for a physical or mental injury or disability caused by the violence; and/or
            • Obtaining services from a victim services organization; and/ or
            • Receiving psychological or other professional counseling; and/ or
            • Relocating, either temporarily or permanently; and/or
            • Seeking legal or law enforcement assistance, including participation in a criminal or civil trial.

An employee may not take the leave if the act(s) of domestic or sexual violence were committed by the employee. This leave is available only for employees who have been employed for at least 13 consecutive weeks.

Personal Emergency Leave

All employers are required to provide the personal emergency leave of 10 days and pay regular wages for the first two days of the leave. Additionally, the amendments prohibit employers from requiring a doctor’s sick note from an employee taking PEL.

Bereavement Leave

Effective Jan. 1, 2019, all employees who have been employed at least two weeks will be entitled to two days of unpaid bereavement leave due to the death of certain family members.

Organ Donor Leave

Employees who have been employed by their employer for at least 13 weeks are entitled to unpaid organ donor leave for up to 13 weeks for the purpose of undergoing surgery to donate all or part of certain organs to a person. In some cases, organ donor leave can be extended for up to an additional 13 weeks.

Family Medical Leave

Employees are entitled to 28 weeks of unpaid leave within a 52-week period to provide care or support to a family member if a qualified health practitioner issues a certificate stating that a family member has a serious medical condition with a significant risk of death occurring in 26 weeks or less. The 28 weeks is not required to be taken consecutively.

Child Death Leave

Bill 148 replaced the former “Crime-Related Child Death or Disappearance Leave” with two distinct leaves: “Child Death Leave” and “Crime-Related Child Disappearance Leave. Effective January 1, 2018, employees are to up to 104 weeks of leave if a child, stepchild, foster child, or child under the legal guardianship of the employee dies, for any reason. Previously, a leave of absence was only provided where the child’s death was crime-related.

Child Disappearance Leave

The Bill 148 increased the Crime-Related Child Disappearance Leave to be increased from 52 weeks to up to 104 weeks.  The employee will be entitled to the unpaid leave if a child, stepchild, foster child, or child under the legal guardianship of the employee, disappears and it is probable that the child disappeared as a result of a crime.

 

The employee must have been employed by the employer for at least 6 consecutive months to be entitled to the leave.  If the child is found alive, the leave of absences ends 14 days after the child is found.  If the child is deceased, then the leave of absence ends at the end of the week in which the child is found. The employee would then be entitled to the Child Death Leave.

Family Caregiver Leave

Family caregiver leave may be taken to provide care or support to certain family members in respect of whom a qualified health practitioner has issued a certificate stating that he or she has a serious medical condition. Family caregiver leave is unpaid, job-protected leave of up to eight (8) weeks per the calendar year with respect to each family member.

Family Responsibility Leave

Effective Jan. 1, 2019, all employees who have been employed at least two weeks will be entitled to three days of unpaid family responsibility leave which can be used for illness, injury, medical emergency, or an urgent matter relating to relating to family members. The leave must be taken in entire days and cannot be duplicated if the employment contract establishes similar leave. Employers will be allowed to require employees to provide medical notes to substantiate the absence.

Critical Illness Leave

Critical Illness leave is unpaid, job-protected leave that can be taken by an employee to provide care or support to a family member of the employee who is critically ill. An employee is eligible to take this leave only if he or she has been employed by his or her employer for at least six consecutive months and may take up to 37 weeks of leave within a 52-week period to care for a minor child, or up to 17 weeks of leave within a 52-week period to care for an adult. A qualified health practitioner must issue a certificate stating that the family member is critically ill and requires the care or support of one or more family members; it must also set out the period during which the family member requires the care or support.

Reservist Leave

Employees who are reservists and who are deployed to an international operation or to an operation within Canada that is or will be providing assistance in dealing with an emergency or its aftermath (including search and rescue operations, recovery from national disasters such as flood relief, military aid following ice storms, and aircraft crash recovery) are entitled under the ESA to unpaid leave for the time necessary to engage in that operation. In the case of operation outside Canada, the leave would include pre-deployment and post-deployment activities that are required by the Canadian Forces in connection with that operation.

 

In order to be eligible for reservist leave, you must have worked for your employer for at least six consecutive months. Generally, reservists must provide their employer with reasonable written notice of the day on which they will begin and end the leave.

 

Employment Standards Act, 2000, S.O. 2000, ch. 41, §§ 49.1, 49.4, 49.5, 50, 50.2; Fair Workplaces, Better Jobs Act, 2017; Bill 47, An Act to Amend the Employment Standards Act, 2018.

Last updated on: May 15th, 2019