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Questions about Public Holidays

What exactly does this provision do?

On January 1, 2018 the  Fair Workplaces, Better Jobs Act, 2017 amended the Employment Standards Act, 2000’s public holiday provision by changing the formula for calculating pay for public holidays that occur on or after January 1, 2018, imposes requirements for employers to provide written statements to employees in relation to substitute days for public holidays and amends the exemption from the public holiday pay provisions for construction employees.

On Monday, May 7, 2018 the Government introduced a new regulation that reinstates the previous formula for calculating public holiday pay that applied prior to January 1, 2018. This regulation came into force on July 1, 2018.

Why is this significant?

For public holidays that occur 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.

For public holidays that occur prior to January 1, 2018 or after July 1, 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 four work weeks before the work week with the public holiday plus all of the vacation pay payable to the employee with respect to the four work weeks before the work week with the public holiday, divided by 20.

Employers are now be required to provide employees with a written statement that sets out specific information when the employee will be receiving a substitute day for a public holiday. Changes to the recordkeeping provisions require the employer to retain a record of the information contained in the statement.

Construction employees with five or more years of employment with the same employer will be exempt from the public holiday pay provisions only if they receive 9.7 per cent or more of their hourly rate for vacation pay or public holiday pay.

What if the employee did not work in the pay period prior to the holiday?

If an employee was on vacation or on personal emergency leave or both for the entire pay period prior to the holiday, the pay period to be used in the calculation of the public holiday pay is the pay period before the start of that leave or vacation. If the employee was away on vacation or personal emergency leave for only part of the pay period before the public holiday, the calculation remains based on the pay period before the public holiday.

If the employee’s absence in the pay period immediately before the public holiday is for any other reason (for example pregnancy or parental leave, lay-off, etc.), the pay period immediately before the public holiday is still used. This could result in the employee receiving $0 as public holiday pay.

What happens if the employee was not employed in the pay period immediately prior to the holiday?

An employee who commenced employment in the pay period that includes a public holiday is entitled to public holiday pay based on the regular wages earned in the pay period that includes the public holiday divided by the number of days the employee worked in that period. Note: This calculation applies only if the employee was in an employment relationship as of the public holiday.

Can an employee and an employer agree that an employee will work on a public holiday?

There has been no change to the provisions relating to working on a public holiday. Generally, an employer and an employee may agree that an employee will work on a public holiday. If an employee is employed in certain operations including a hospital, a continuous operation, a hotel, motel, tourist resort, restaurant or tavern, an employer may require an employee to work on a public holiday that is ordinarily a working day for the employee.

Can an employee be given a substitute day for a public holiday?

Yes. The provision has not changed in that an employee may be given a substitute day for a public holiday.

However, if an employee is given a substitute day for the public holiday, the employer is now required to provide the employee with a written statement that sets out the public holiday, the date of the day that is substituted for the public holiday, and the date on which the statement is provided to the employee. The statement must be provided to the employee before the public holiday. The employer is required to retain a record of the information contained in the statement for a period of three years after the information was given to the employee.

Are there any changes to the exemption for construction employees?

Construction employees employed for less than five years are exempt from the public holiday provisions if they receive 7.7 per cent or more of their hourly rate for vacation pay or public holiday pay. Construction employees employed for five years or more are exempt from the public holiday provisions if they receive 9.7 per cent or more of their hourly rate for vacation pay or public holiday pay.

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