Canadian HR Reporter

December 2018 CAN

Canadian HR Reporter is the national journal of human resource management. It features the latest workplace news, HR best practices, employment law commentary and tools and tips for employers to get the most out of their workforce.

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CANADIAN HR REPORTER DECEMBER 2018 6 NEWS worked plus the worker's regular rate for the remainder of the three hours, and (ii) the employee's reg- ular rate for three hours of work. Personal Emergency Leave One of more significant proposed amendments in Bill 47 repeals the controversial changes to the ESA Personal Emergency Leave (PEL) provisions introduced by Bill 148. Specifically, Bill 47 removes PEL entirely, replacing it with three separate unpaid leaves designed to address the specific situations to which PEL applied prior to Bill 148. A worker with at least two consec- utive weeks of employment will have the following entitlements: • Sick Leave: Up to three days per year for the employee's illness, injury or medical emergency. • Family Responsibility Leave: Up to three days per year for the illness, injury, medical emergen- cy or urgent matter related to a prescribed family member. • Bereavement Leave: Up to two days per year because of the death of a prescribed family member. For each of these leaves, an employer may request evidence reasonable in the circumstances to verify entitlement to the leave (including a medical note from a qualified health practitioner, re- versing Bill 148's prohibition on requiring medical documenta- tion to support a PEL leave). Bill 47 also expressly recognizes that if an employee takes a paid or un- paid leave under an employment contract in circumstances that would otherwise entitle the em- ployee to one of these ESA leaves, the employee is deemed to have taken leave under the ESA as well. Under the Bill 148 amend- ments, as of Jan. 1, 2018, every em- ployee in the province was entitled to two additional paid PEL days off per year and a further eight unpaid PEL days, for which no corrobo- rating medical documentation could be requested. is was one of the most controversial amend- ments made by Bill 148. Many employers have their own policies that provide for a va- riety of leaves, both paid and un- paid. Bill 47 addresses how these contractual benefits will intersect with an employee's entitlement to sick leave, family responsibil- ity leave and bereavement leave, providing clarity to employers on an issue not addressed in Bill 148. Other leaves The leave provisions for cases of domestic and sexual violence affecting an employee or an em- ployee's child introduced by Bill 148 remain unchanged. is in- cludes the entitlement to up to five paid days of leave under this section of the ESA. Bill 47 also does not propose any amend- ments to the expanded and en- hanced parental leave, pregnancy leave, critical illness leave, family medical leave, child death leave, or crime-related child disappearance leave provisions currently in force. Related employer e amendments to the related employer sections of the ESA introduced by Bill 148 remain unchanged. Prior to Bill 148, two employers that were engaged in associated or related businesses could be declared one employer only if the intent or effect of their arrangement defeated the pur- pose of the ESA. Bill 148 removed the "intent or effect" condition. e related employer provision may be used to impose ESA ob- ligations, such as severance pay, on two or more entities engaged in associated or related activities or businesses, when those obliga- tions would not exist if the entities remained separate employers. Vacation Bill 47 makes no change to the vacation entitlements introduced by Bill 148. After five years of em- ployment, an employee remains entitled to three weeks of vacation time and six per cent vacation pay. Public holiday pay Under Bill 47, public holiday pay is calculated based on the formula used pre-Bill 148. A worker's pub- lic holiday pay is equal to the total amount of regular wages earned and vacation pay payable to the employee in the four weeks before the work week in which the public holiday occurred, divided by 20. Initially, the Bill 148 public holi- day amendment was significant, particularly for an employer with casual employees. Under Bill 148, an employee who worked a single eight-hour day in the pay period preceding the public holiday, and nothing more, was entitled to the same amount of public holiday pay as an employee who worked five days per week at eight hours a day. ankfully, the previous gov- ernment corrected this and, as of July 1, 2018, temporarily reverted back to the pre-Bill 148 formula. The current proposed amend- ment will permanently maintain the pre-Bill 148 formula. Employee misclassification Bill 47 amends the employee mis- classification section introduced by Bill 148. If there is a dispute as to whether an individual has been misclassified as an independent contractor, the employer will no longer bear the burden of proving the individual is not an employee. e individual who claims to be an employee will have the onus to prove his employee status. Equal pay for equal work Other than the requirement for equal pay on the basis of sex (which was included in the ESA prior to Bill 148), an employer will no longer be required to provide equal pay based on employment status (part-time, casual, and tem- porary). Bill 47 also repeals the requirement a temporary help agency pay an agency employee at the same rate of pay as an em- ployee of the client performing substantially similar work. e Bill 148 amendments failed to recognize that many employers pay a part-time, casual or tempo- rary employee at a different rate because she has less experience performing the work than a full- time counterpart or has less of a connection to the workplace. e Bill 148 amendments significantly increased the cost to employers of hiring or keeping on part-time, casual and temporary employees. is ultimately hurt employees, particularly those who work in casual or temporary employment for the flexibility it provides. Penalties for contravention Administrative penalties for contraventions of the ESA, which had been increased to $350/$700/$1,500 under Bill 148, are expected to return to $250/$500/$1,000. Lisa Bolton and Gerald Griffiths are lawyers at Sherrard Kuzz in Toronto, an employment and labour law firm representing management. ey can be reached at (416) 603-0700 (main), (416) 420-0738 (24-hour) or by visiting www.sherrardkuzz.com. Equal pay based on employment status taken out BILL 47 < pg. 5

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