Ontario’s New Scheduling Provisions

November 26, 2017, by HR à la carte | Work Environment and Policies

With the recent passing of Ontario's Fair Workplaces, Better Jobs Act, 2017, we'll be providing a series of blogs on the many changes to the Employment Standards Act that employers need to be aware of.  This first blog highlights the changes to scheduling work in Ontario.

Ontario employers will have just over a year to get ready for changes to scheduling work as these come into effect on Jan 1, 2019.  

3 Hour Rule: 

If an employee who regularly works more than three hours a day is required to present himself or herself for work but works less than three hours, despite being available to work longer, the employer shall pay the employee wages for three hours, equal to the greater of the following:

1.  The sum of,

    i.  the amount the employee earned for the time worked, and

   ii.  wages equal to the employee’s regular rate for the remainder of the time.

2.  Wages equal to the employee’s regular rate for three hours of work.

Note:  The above does not apply if the employer is unable to provide work for the employee because of fire, lightning, power failure, storms or similar causes beyond the employer’s control that result in the stopping of work.

Minimum Pay for Being On Call:

If an employee who is on call to work is not required to work or is required to work but works less than three hours, despite being available to work longer, the employer shall pay the employee wages for three hours, equal to the greater of the following:

1.  The sum of,

            i.  the amount the employee earned for the time worked, and

           ii.  wages equal to the employee’s regular rate for the remainder of the time.

2.  Wages equal to the employee’s regular rate for three hours of work.

Note:  The above does not apply if the employer required the employee to be on call for the purposes of ensuring the continued delivery of essential public services, regardless of who delivers those services; and the employee who was on call was not required to work.

Employers are only required to pay an employee a minimum of three hours of pay during a twenty-four hour period beginning at the start of the first time during that period that the employee is on call, even if the employee is on call multiple times during those twenty-four hours

96 Hours Notice of Shift/On Call

An employee has the right to refuse an employer’s request or demand to work or be on call on a day that they were not scheduled to work or be on call if they receive less than 96 hours notice (4 days) of the shift.  Employees need to notify the employer of the refusal as soon as possible.

Note:  The above does not apply if the employer’s request or demand to work or be on call is,

  (a)  to deal with an emergency*; 

  (b)  to remedy or reduce a threat to public safety;or

(b.1) to ensure the continued delivery of essential public services, regardless of who delivers those services; or

   (c)  made for such other reasons as may be prescribed.

*Emergency is defined as a situation or an impending situation that constitutes a danger of major proportions that could result in serious harm to persons or substantial damage to property and that is caused by the forces of nature, a disease or other health risk, an accident or an act whether intentional or otherwise, or a situation in which a search and rescue operation takes place.

Notice of Cancellation of Shift/On Call

Employers are required to provided a minimum of 48 hours notice of a shift or on call period cancellation otherwise they will need to pay an employee wages equal to the employee's regular rate for 3 hours of work.  

Note:   The above does not apply if 

  (a)  the employer is unable to provide work for the employee because of fire, lightning, power failure, storms or similar causes beyond the employer’s control that result in the stopping of work;

  (b)  the nature of the employee’s work is weather-dependent and the employer is unable to provide work for the employee for weather-related reasons; or

   (c)  the employer is unable to provide work for the employee for such other reasons as may be prescribed.

The new scheduling of work changes are a lot to unpack; however employers have a year to put in place processes and policies that will enable them to comply with these new provisions.  

Other Items of Interest:

Proposed Changes to Ontario's Employment Standards Act