Vacation and Public Holiday Pay

The “hottest topic of the summer”! 

I get asked for this information a lot, so today’s blog contains and clarifies the information from the Employment Standards Act (ESA), to help you to know the true rules surrounding this confusing topic.

First we will talk about Vacation, then Public Holidays.

While most employees and employers in Ontario are covered by the ESA, there are some employees to whom it does not apply at all, there are some employees who are covered by the ESA generally but who are exempted from certain parts of it, and there are some other employees who are covered by special rules that change how certain parts of the ESA apply.

The Special Rule Tool can tell you about employees who are not covered by the Public Holiday provisions of the ESA or who are covered by special rules that change how employees are paid for public holidays. Please note—this tool is not law but a quick reference that is provided for convenience. For the law, you must refer to the ESA itself and to the regulations made under it.

To use the Tool, select one of the industry icons—then choose the job category that best describes the job. ?  Jobs to which no exemptions or special rules apply are not mentioned.

WHICH CATEGORIES ARE SPECIAL?

  •  EMS, Healthcare, Health Professionals
  •  Manufacturing, Construction, Mining
  •  Hospitality Services, Sales
  •  Transportation
  •  Agriculture, Growing, Breeding, Keeping, and Fishing
  • Household, Landscaping and Residential Building Services
  • Government, White Collar, Professionals
  • Other: Student Employees, Funeral Directors and Embalmers, Television and Film, Temp Employees, and Homeworkers

VACATION TIME AND VACATION PAY:

Under Employment Standards legislation in Ontario, Vacation Time and Vacation Pay are actually two separate entities.

In most cases, employees take paid vacation time off work and the two are blended together.

There are some occupations that are exempt from the Vacation with Pay provision of the ESA. These persons ARE, however, eligible for vacation time off, as per the ESA.

Most professional occupations, such as lawyers, land surveyors, dentists, etc. are in this category.

You must check with the relevant Employment Standards Act for the province/territory where the employee is paid to confirm the amount of vacation time and the amount of vacation pay to which the employee is entitled.

  • In Ontario, employees are entitled to a minimum 2 weeks of vacation time, and a minimum 4% of wages as vacation pay, with no provision for increases for length of employment.

 

PUBLIC HOLIDAYS DEFINED:

The ESA defines a “Public Holiday” as any of the following;

  1. New Year’s Day             2. Good Friday
  1. Victoria Day                4. Canada Day
  1. Labour Day                 6.  Thanksgiving Day
  1. Christmas Day             8. December 26

9. “Any day prescribed as a Public Holiday”, which means either Family Day (3rd Monday in February), Easter Monday, or Civic Holiday in August.

As long as the employee(s) receive a minimum 9 public holidays off, it doesn’t matter which of the days they receive.

To clarify:

You have to give employees at least 8 of the holidays as listed in the ESA. You and the employee(s) agree that they will take the Civic Holiday in August as the ninth holiday that they will receive.

Because the Ontario Government passed Family Day, you and the employees can choose to substitute Family Day for the Civic Holiday.

 

PUBLIC HOLIDAY PAY:

An employee’s public holiday pay for any 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″.

An employer who is required to pay premium pay to an employee for working a public holiday shall pay the employee at least one and one half (1.5) times his or her regular rate.

If the Public holiday is ordinarily a working day for an employee and the employee is not on vacation that day, the employer shall give the employee the day off work and pay him or her public holiday pay for that day.

If the Public holiday is not ordinarily a working day or is a day on which the employee is on vacation, the employer shall substitute another day that would ordinarily be a working day for the employee to take off work and for which he or she shall be paid public holiday pay as if the substitute day were a public holiday.

Agreements to work on Public Holidays

  • An employee and employer may agree that the employee will work on a public holiday that may or may not fall on a day that would ordinarily be a working day for that employee or on a day on which the employee is on vacation.  In some cases, employees are required to work on public holidays, such as retail or emergency personnel.

Employee’s entitlement

  • The employer pays the employee’s wages at his or her regular rate for the hours worked on the public holiday and substitutes another day that would ordinarily be a working day for the employee to take off work, and for which he or she shall be paid public holiday pay as if the substitute day were a public holiday;

 or

  • If the employee and the employer agree, the employer shall pay the employee public holiday pay for the day plus premium pay for each hour worked on that day.

Exception

  • The employee has no entitlement to premiums if he or she fails, without reasonable cause, to work all of his or her last regularly scheduled day of work before the public holiday or all of his or her first regularly scheduled day of work after the public holiday.

Restriction (this applies in all cases where substitute days off are given)

A day that is substituted for a public holiday shall be,

  • a day that is no more than three months after the public holiday; or
  • if the employee and the employer agree, a day that is no more than 12 months after the public holiday.

What happens if the employee doesn’t work their shift before or after the Public Holiday?

  • If the employee performs all of the work that he or she agreed to perform on the public holiday but fails, without reasonable cause, to work all of his or her last regularly scheduled day of work before or all of his or her first regularly scheduled day of work after the public holiday, the employer shall give the employee premium pay for each hour worked on the public holiday but the employee has no other entitlement.

What happens if the employee shows up but fails to do any work on the Public Holiday?

  • If the employee, without reasonable cause, performs none of the work that he or she agreed to perform on the public holiday, the employee has no entitlement.
  • If the employee, with reasonable cause, performs none of the work that he or she agreed to perform on the public holiday, the employer shall give the employee a substitute day off work or, if an agreement was made under the premium pay clause, public holiday pay for the public holiday.
  •  If the employee performs some of the work that he or she agreed to perform on the public holiday but fails, with reasonable cause, to perform all of it, the employer shall give the employee wages at his or her regular rate for the hours worked on the public holiday and a substitute day off work;
  • or, if an agreement was made under the premium pay clause, public holiday pay for the public holiday plus premium pay for each hour worked on the public holiday.

Employees on leave or lay-off

  • If a public holiday falls on a day that would not ordinarily be a working day for an employee and the employee is on a leave of absence under section 46 or 48 of the ESA (only pregnancy or parental leave) or on a layoff on that day, the employee is entitled to public holiday pay for the day but has no other entitlement with respect to the public holiday.

Premium pay hours are not overtime hours

  • If an employee receives premium pay for working on a public holiday, the hours worked on the Holiday are not taken into consideration in calculating any overtime pay to which the employee may be entitled.

If employment ends

  • If the employment of an employee ends before a day that has been substituted for a public holiday the employer still has to pay the employee public holiday pay for that day.

For More Information:

Contact me!  or:

Employment Standards Act

www.e-laws.gov.on.ca/html/statutes/english/elaws_statutes_

 

Special Rule Tool:

www.labour.gov.on.ca/english/es/tools/srt/index.php