Taking Notes on Bill 148: Key ESA Changes Impacting School Boards
Date: December 29, 2017
Recent reforms enacted by Bill 148, the Fair Workplaces, Better Jobs Act, 2017, are reshaping the employment and labour law landscape in Ontario, and creating substantial new compliance obligations – and potential risks – for School Boards and other employers.
In this video, our School Board practice group co-Chairs Dolores Barbini and John-Paul Alexandrowicz discuss how these key Employment Standards Act, 2000 areas of reform may impact current collective bargaining agreements, and future rounds of labour relations negotiations within the sector:
- Changes to Personal Emergency Leave
- New leaves of absences
- Equal Pay for Equal Work for Part-time, Casual, and Temporary employees
- Changes to scheduling rules.
My name is Dolores Barbini and, along with my colleague John-Paul Alexandrowicz, we welcome you to our Bill 148 video specifically for School Boards.
Bill 148, the Fair Workplaces, Better Jobs Act, 2017, includes sweeping changes to employment and labour laws in Ontario, creating substantial compliance obligations and potential risks for all Ontario employers, including School Boards.
In today’s session we will address the practical issues that School Boards need to know and how they can best prepare for Bill 148. While we can’t cover everything today, this session includes a discussion of the more difficult topics involving the Employment Standards Act, including:
– Changes to Personal Emergency Leave
– New leaves of absences
– Equal Pay for Equal Work for part-time, casual, and temporary employees
– Changes to scheduling rules
Before we delve into the amendments, I would like to discuss how these changes will interact with your collective agreements. Some of the amendments have already come into force while others will shortly come into force on January 1, 2018 regardless of your collective agreement provisions.
Some changes, on the other hand, contain transition provisions which will allow an employer to rely on collective agreement provisions until the earlier of the expiry of the collective agreement or, at the latest, January 1, 2020. For school boards, this should mean that you can rely upon a relevant provision in your collective agreement until its expiry on August 31, 2019. However, these amendments should still be considered by school boards in the next round of bargaining because, at that time, they will automatically come into effect.
As well we wish to bring to your attention the fact that some amendments touch upon what are likely to be centrally negotiated items and therefore may be addressed centrally in the next round of bargaining.
Throughout this presentation, whenever we refer to a transition provision, this analysis – namely the continuation of existing collective agreement terms – is applicable. In contrast, where we refer to an effective date without a transition provision, the change becomes effective on the stated effective date despite any collective agreement provision.
Changes to Personal Emergency Leave
Bill 148 will enhance the Personal Emergency Leave provisions of the ESA.
These changes will come into effect on January 1, 2018 with no transition provision.
Employees will still be entitled to 10 days of Personal Emergency Leave per calendar year, but the first 2 days will now be paid days off. The 2 paid days must be applied to the first 2 days of Personal Emergency Leave taken in the calendar year.
An employee must have been employed for at least one week before becoming entitled to the 2 paid days. If Personal Emergency Leave days are required during the one week qualifying period, those unpaid days are to be later deducted from the employee’s subsequent allotment of eight unpaid days.
Bill 148 also amends the ESA to require that, where either of the two paid days of Personal Emergency Leave occurs on a day when the employee is entitled to overtime pay or a shift premium, the employee is only entitled to pay at their regular rate of wages and not at the higher premium rate.
Another key change is that employers will be prohibited from requiring an employee to provide a medical note to validate a claim for Personal Emergency Leave. The ESA will continue to state that, subject to the amendment, employers may require reasonable evidence for the leave. This will still permit a board to reasonably require non-medical information that would justify provision of an emergency leave. It appears that despite this change, employers will still be able to request a medical note to establish entitlement to Personal Emergency Leave, but will not be able to require such a medical note.
You should consider whether any of the contractual entitlements currently offered to your employees for the same purposes as Personal Emergency Leave (such as bereavement leave and sick leave) can be offset against the employee’s right to Personal Emergency Leave so that you do not have to pay for an additional two days. Whether or not the days can be offset should be determined based on the wording of your policies and the purposes of your contractual entitlements. We would be happy to assist you with that assessment.
You must keep in mind that any contractual paid leave that requires a medical note may not qualify as a Personal Emergency Leave day for the purposes of offsetting given the new prohibition on requiring such notes.
Leaves of Absence
There are several amendments to existing leaves of absence as well as several new ones.
As of December 3, 2017, Critical Illness Leave has already replaced Critically Ill Child Care leave, and applies now across the province. It has 2 components:
- Care or support provided to a critically ill minor child family member for up to 37 weeks in a 52 week period.
- Care or support provided to a critically ill adult family member for up to 17 weeks in a 52 week period.
The pool of eligible family members has also been expanded.
An amendment to Family Medical Leave will come into force on January 1, 2018. There is no transition provision. The Family Medical Leave will, on January 1, increase to 28 weeks of leave in a 52 week period. The definition of a qualified health practitioner who can certify the leave will also be expanded.
There are a number of new unpaid leaves that come into force on January 1, 2018. They are:
- Child Death Leave for up to 104 weeks for the death of a minor child for any reason
- Crime Related Child Disappearance Leave for up to 104 weeks if a child disappears as a probable result of a crime
Finally there is a new Domestic or Sexual Violence Leave. Employees employed for at least 13 weeks can take a leave if the employee, or the employee’s child, experiences domestic or sexual violence, or the threat of domestic or sexual violence AND the leave is taken for any of the following specific purposes:
- To seek medical attention
- To obtain services from a victim services organization
- To obtain psychological or other professional counselling
- To relocate temporarily or permanently
- To seek legal or law enforcement assistance including preparing for legal proceedings
In each calendar year, an employee can seek up to 10 days leave and up to 15 weeks leave and the first five days are paid.
Confidentiality obligations apply to information provided by an employee in justifying their need for this leave.
You will have to consider how each of these leaves interact with your current contractual obligations and with each other.
Equal Pay for Equal Work for Part-time, Casual and Temporary Employees
One of the important changes to be introduced by Bill 148 concerns the new provisions relating to the concept of equal pay for equal work. It’s important to note that these provisions have a transition period for unionized employees which means that if there is any conflict with a collective agreement provision, they will only come into force upon the expiry of the collective agreements on August 31, 2019. For non-union employees, the effective date is April 1, 2018.
Under the new provisions, an employer will not be able to pay an employee at a rate less than the rate paid to another employee because of employment status. The Act defines employment status as either a difference in the number of hours regularly worked or differences between employees in the duration or term of their employment. In other words, if the equal pay for equal work provisions apply, there can be no difference between the pay rates for permanent, part-time, temporary, seasonal or casual employees.
So what’s required to establish a claim for equal pay based on employment status? The Act has a three-part test that provides that an employer cannot pay an employee less than another employee because of a difference in employment status when,
- They perform substantially the same kind of work in the same establishment
- Their performance requires substantially the same skill, effort and responsibility and
- Their work is performed under similar working conditions
All of these conditions must be satisfied for the new requirement to apply.
These conditions raise a number of questions for school boards. In the case of some job classifications, supply custodians for example, it will be difficult for a school board to argue that there is anything different about the work performed by a casual employee as compared to the regular employee they are replacing. In other cases, involving for example daily occasional teachers and supply DECEs, the satisfaction of the second of the conditions concerning skill, effort and responsibility will be more contentious. As you know, there are many responsibilities that would distinguish a permanent teacher or LTO from a daily occasional teacher, such as the preparation of lesson plans and report cards, the expectation of meeting with parents and so on …
You should also note that there are certain exceptions to the new rule concerning equal pay for equal work. The most relevant exception for school boards would be the one concerning “seniority systems.” This exception would allow the continued differentiation between teachers based upon years of experience in the job.
Another exception exists due to “any other factor other than sex or employment status” – curious language that has yet to be interpreted in this context. Boards may be able to use these two exceptions to justify differences in a pay grid for contract teachers or other employees based on years of service and educational credentials.
We should also expect that, in light of the transition period and the deferred effective date, these provisions will be major items in the next round of bargaining, particularly for occasional teachers’ collective agreements.
Other Changes to the ESA
We also want to just briefly mention some of the other changes to the ESA that may or may not be relevant to your school board.
- As you have likely heard, the minimum wage will increase to $14.00 on January 1, 2018 and then to $15.00 on January 1, 2019. This could have an impact for certain board employees such as lunch supervisors.
- There is also an equal pay for equal work provision for employees of Temporary Help Agencies that will require the agency to pay a wage rate to their employees that is no lower than the wage paid to employees of the customer performing the same work. For boards that engage agencies that supply temporary employees, you should review your contracts to assess the extent to which these increased costs to the agency may be passed onto your board.
- There will be changes to the entitlement to paid vacation and the calculation of vacation pay, effective January 1, 2018, that require an employee’s vacation entitlement to increase after a period of employment of 5 years to 3 weeks vacation time and 6% vacation pay. Depending on what your collective agreements currently provide, this may necessitate some significant changes to the calculation of vacation and vacation pay.
- There are new requirements for the calculation of public holiday pay which could result in a substantial increase in costs. This change won’t affect certified teachers, but could have an impact on other board employees. If you have any questions about this new calculation, we would be happy to assist.
- Parental leave under the ESA has been lengthened to match the changes to the Employment Insurance Act that give employees the option of receiving a lower EI parental benefit for a longer period of time. Pregnancy and parental leave top-up plans will be affected and school boards will need to review their plans and consider what changes are needed as a result.
Changes to Scheduling Rules
A little further down the road are the new requirements around scheduling.
There are five new scheduling requirements:
The earliest scheduling requirement is the new provision that gives an employee the right to request changes to their schedule or work location. This change will come into effect on January 1, 2019 even if collective agreements are in force.
Under this new requirement, an employer upon receiving a request for change must then discuss the request with the employee, notify the employee of the decision within a reasonable time after receiving the request and provide written reasons if the request is denied.
To address this new right, your Board may wish to develop a process to ensure consistency. You should also ensure that principals, HR reps and other supervisors understand that employees are entitled to make these requests and that such employees are entitled to receive written responses.
The second new set of scheduling provisions will come into force upon the expiry of school board collective agreements on August 31, 2019.
This change relates to the three-hour reporting requirement. There is currently a three-hour rule in the Employment Standards Act which requires employees to be paid for a minimum of three hours if they regularly work more than three hours in a day and are required to report to work, but work less than three hours. The existing provision has been interpreted as only requiring the employee to earn the minimum wage for those three hours, regardless of their personal wage rate. Now, the employee will be entitled to three hours pay based on a comparison between three hours at their regular rate and a formula combining the time worked and not worked. Of course, this might not be a significant change if your collective agreements already provide for this in their call-in provisions.
Third, the three-hour rule now also provides that employees who are on-call but don’t work or don’t work for three hours still receive three hours pay. If you currently have employees who are on call, you may wish to revisit this practice given that the Bill 148 amendments will likely increase your on-call costs.
Fourth, the amendments will create an obligation to pay three hours at the regular rate where the employer cancels a scheduled work shift or on-call shift within 48 hours of its commencement. Again, you may wish to revisit your shift cancellation practices in this regard to avoid unnecessary increased costs.
Finally, the amendments will provide an employee with the right to refuse work or on-call assignment, where the request is made within 96 hours of the start of the shift. This is intended to provide employees with some advance notice so that they can plan for the unexpected shift and make child care or other arrangements.
Labour Relations Act
Apart from the ESA, a number of changes were also made to the Labour Relations Act. The most relevant for school boards are the OLRB’s new broad powers to consolidate existing non-teacher bargaining units after certification or on application by the employer and a union. This power could become relevant in circumstances where a union represents employees in a number of small support staff bargaining units and there is a shared desire to put them under a single collective agreement.
As you may be aware, Hicks Morley has created several excellent resources for its school board clients that can assist you in taking the concrete steps necessary to plan for the impact of the Act. Front and center is our easy-to-use Compliance Checklist that gives our client school boards a step-by-step approach to the implementation challenges you are facing. To obtain an electronic copy of the checklist or any of our other materials describing the impact of the Act, please contact your regular Hicks Morley lawyer by phone or by email.
If you have any questions about Bill 148, please feel free to reach out to us. As well we would appreciate receiving your feedback and your ideas for future videos. Thanks for joining us.
The article in this client update provide general information and should not be relied on as legal advice or opinion. This publication is copyrighted by Hicks Morley Hamilton Stewart Storie LLP and may not be photocopied or reproduced in any form, in whole or in part, without the express permission of Hicks Morley Hamilton Stewart Storie LLP. ©