The ESA sets out the rights and responsibilities of both employees and employers in Ontario workplaces. It also contains provisions that apply to people who are seeking employment with temporary help agencies and, in some cases, to clients of such agencies, even though the client business is not the employer of the person filing a claim under the ESA.
Most employees and employers in Ontario are covered by the ESA. However, the ESA does not apply to certain individuals and persons or organizations for whom they work, including:
Employees of the Crown are excluded from some (but not all) provisions of the ESA.
For a complete listing of other job categories not governed by the ESA, please check the ESA and its regulations. Regulations set out exemptions to the law, special rules and details about how to apply certain sections of the ESA.
The ESA does not address wage increases. It does provide for minimum wages.
Several unpaid, job protected leaves for these types of events are available under the ESA:
Employees who work for employers that regularly employ at least 50 employees are entitled to personal emergency leave in certain situations. Personal emergency leave is unpaid, job-protected leave of up to 10 days each year. It may be taken in the case of a personal illness, injury or medical emergency, or a death, illness, injury, medical emergency of, or urgent matter relating to, certain relatives. Please refer to the Personal Emergency Leave chapter of Your Guide to the Employment Standards Act, 2000 for more information.
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 calendar year with respect to each family member. Please refer to the Family Caregiver Leave chapter of Your Guide to the Employment Standards Act for more information.
Family medical leave is unpaid, job-protected leave of up to eight (8) weeks in a 26 week period. Family medical leave may be taken to provide care or support to certain family members and people who consider the employee to be like a family member in respect of whom a qualified health practitioner has issued a certificate stating that he or she has a serious illness with a significant risk of death occurring within a period of 26 weeks. Please refer to the Family Medical Leave chapter of Your Guide to the Employment Standards Act for more information.
Critically ill child care leave is unpaid, job-protected leave of up to 37 weeks that can be taken by an employee to provide care or support to a critically ill child of the employee. 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. A qualified health practitioner must issue a certificate stating that the child is a critically ill child who requires the care or support of one or more parents and setting out the period during which the child requires the care or support. Please refer to the Critically Ill Child Care Leave chapter of Your Guide to the Employment Standards Act for more information.
Crime-related child death or disappearance leave is available if a child of the employee dies or disappears and it is probable, considering the circumstances, that the child died or disappeared as a result of a crime. 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. Please refer to the Crime-Related Child Death or Disappearance Leave chapter of Your Guide to the Employment Standards Act for more information.
Some employers have paid benefit plans for sickness, bereavement and other leaves of absence. These plans aren't required by the ESA.
If requested by the employer, the employee is required to provide the employer with a copy of a medical certificate relating to the employee’s family caregiver, family medical, or critically ill child care leave.
An employer is allowed to ask an employee to provide evidence that he or she is eligible for a personal emergency leave or crime-related child death or disappearance leave. The employee is required to provide evidence that is reasonable in the circumstances.
If the employee is on a leave under the ESA, the employer is prohibited from penalizing the employee in any way for being away from work.
An employee whose employer regularly employees 50 or more employees is entitled to 10 personal emergency leave days per year. Personal Emergency leave days can be used to attend a doctor's appointment if the appointment is because of an illness, injury or medical emergency. This leave is job-protected.
The ESA does not address the issue of employees giving notice to the employer when they quit their job, except under the pregnancy and parental leave provisions, which require that employees give notice to their employer if they are not returning, and in cases where the employer is terminating the employment of 50 or more employees in a four-week period. Employees may be required to provide their employer with notice that they are quitting under other laws.
An employee can choose to sue an employer in a court of law for wrongful dismissal. However, an employee can't sue an employer for wrongful dismissal and have a claim for termination or severance pay investigated by the ministry for the same termination or severance. The employee must choose one procedure or the other. Please refer to the Termination of Employment, and Severance Pay chapters of Your Guide to the Employment Standards Act .
An employee must not work for more than five hours in a row without getting a 30-minute eating period (meal break) free from work. If the employer and employee agree, the 30-minute eating period may be taken as two breaks within each five-consecutive-hour work period. Meals breaks are unpaid unless the employee’s employment contract requires payment. Employers do not have to give employees “coffee” breaks or any other kind of break other than the eating period.
Employers have no obligation to provide transportation to or from work under the ESA, although individual contracts of employment or a collective agreement may require it.
The ESA does not put restrictions on the timing of an employee's shift, other than the restrictions relating to hours of work (i.e., the maximum length of a work day, certain number of hours employees are entitled to be free of work, eating periods).
There is nothing in the ESA that requires employees to be paid more for working Sundays, or late at night.
If a provision in an agreement provides a greater right or benefit than an employment standard, then that provision applies.
No employee can agree to give up his or her rights under the ESA (for example, the right to personal emergency leave). Any such agreement is invalid.
The employer is responsible for making decisions about dress codes, uniforms and other clothing requirements.
Some employers require employees to pay for personal uniforms or other items as a condition of having a job. This practice is not prohibited by the ESA. However, an employer may make a deduction from an employee’s wages for the cost of a uniform or other items only if the employee agrees in writing to have a specified amount deducted. Employees should ask the employer about any special requirements before accepting a job.
Even if an employee agrees in writing, there are certain situations where the deduction may not be made. For example, an employer cannot make deductions for a cash shortage when more than one individual has access to a cash register – even with a written agreement. Also, an employer is prohibited from deducting an amount due to faulty work.
Employers cannot withhold tips and other gratuities from employees or make deductions from their employees’ tips to cover things like spillage, breakage, losses or damage, etc. However, employers may make deductions from tips if it is required by statute or court order. Employers may also make deductions from tips if the employer is collecting and redistributing the tips and other gratuities among some or all of the employees (a practice commonly known as “tip pooling”).
Even if the employer collects tips and other gratuities to redistribute them as part of a tip pool, a sole proprietor, partner, director or shareholder in the business can only participate in the tip pool where he or she regularly performs to a substantial degree the same work performed by some or all of the employees who share in the redistribution, or the same work performed by employees of other employers in the same industry who commonly receive or share tips or other gratuities.
This isn't covered by the ESA. The employer is responsible for deciding whether employees get a discount on products the employer makes or sells, or on services the employer provides. The employer is also the one who determines how much the discount will be.
The ESA prohibits employers and anyone acting on their behalf from harassing or penalizing an employee in any way because the employee, for example, asks the employer to comply with the ESA or asks the employer about employee rights under the ESA.
The Occupational Health and Safety Act (OHSA) requires employers to develop a workplace harassment policy and program, and to provide information and instruction to workers on the policy and program.
Effective September 8, 2016, amendments to the OHSA will add the following requirements:
The amendments also:
Information about workplace harassment can be found on the Ministry of Labour’s website.
Information on Bill 132 and the amendments to the OHSA can be found on the Legislative Assembly of Ontario’s website.
For information about the prohibition of sexual harassment, harassment and discrimination under the Human Rights Code, call your local Ontario Human Rights Commission office. See the Blue Pages of your telephone book under "Human Rights, Ontario Human Rights Commission."
The ESA does not require employers to provide pension plans. However, if they do, they are required to allow employees to continue participating in the plans (and certain other benefit plans, if these are provided) when on pregnancy, parental, personal emergency, family caregiver, family medical, critically ill child care, organ donor, reservist (with some exceptions), or crime-related child death or disappearance leave under the ESA. In addition, the ESA does not allow employers to discriminate on the basis of age, sex, marital status or same-sex partnership status in the provision of benefit plans, including pension plans, unless this is allowed by the Benefit Plans regulation under the ESA. For other information, call the Financial Services Commission 416-250-7250 or toll-free 1-800-668-0128.
If an employee thinks the employer is not complying with the ESA, he or she can call the Employment Standards Information Centre at 416-326-7160 or toll free at 1-800-531-5551 for more information about the ESA and how to file a complaint. Complaints are investigated by an employment standards officer who can, if necessary, make orders against an employer-including an order to comply with the ESA. The ministry has a number of other options to enforce the ESA, including requesting voluntary compliance, issuing an order to pay wages, an order to reinstate and/or compensate, a notice of contravention, or issuing a ticket or otherwise prosecuting the employer under the Provincial Offences Act.
If you have questions about the Employment Standards Act, 2000, call the Ministry of Labour's Employment Standards Information Centre at 416-326-7160, toll free at 1-800-531-5551, or TTY 1-866-567-8893.
Information on the ESA can also be found at the Employment Standards section of the Ministry of Labour's website.
You can order copies of the Employment Standards Act, 2000 and related information materials from: Publications Ontario, 1-800-668-9938; Hearing Impaired TTY 1-800-268-7095, or the Ontario government E-Laws website.
Disclaimer: This resource has been prepared to help employees and employers understand some of the minimum rights and obligations established under the Employment Standards Act, 2000 (ESA) and regulations. It is not legal advice. It is not intended to replace the ESA or regulations and reference should always be made to the official version of the legislation. Although we endeavor to ensure that the information in this resource is as current and accurate as possible, errors do occasionally occur. The ESA provides minimum standards only. Some employees may have greater rights under an employment contract, collective agreement, the common law or other legislation. Employers and employees may wish to obtain legal advice.