Human Resources Legislative Update
Government Proposes Changes to ESA Regulations in Support of Bill 47
Date: November 9, 2018
On November 7, 2018, the government of Ontario posted proposed changes to regulations made under the Employment Standards Act, 2000 (ESA) in support of the ESA amendments introduced by Bill 47, Making Ontario Open for Business Act, 2018.
Proposed Changes to O. Reg. 502/06 (Terms and Conditions of Employment in Defined Industries – Automobile Manufacturing, Automobile Parts Manufacturing, Automobile Parts Warehousing and Automobile Marshalling)
If passed, Bill 47 would repeal the personal emergency leave (PEL) provision in the ESA (s. 50) and replace it with three separate leaves: sick leave, family responsibility leave and bereavement leave.
O. Reg. 502/06 currently contains a provision that modifies the application of PEL to employees in defined industries of the auto sector (section 4).
With the repeal of PEL, this regulatory provision would no longer be necessary.
Proposed Changes to O. Reg. 285/01 (When Work Deemed Performed, Exemptions and Special Rules)
PEL – Special Rules
Special PEL rules are found in sections 3 and 3.0.1 of O. Reg. 285/01. Section 3 states that PEL does not apply to specified professionals “in circumstances in which the exercise of the entitlement would constitute an act of professional misconduct or a dereliction of professional duty.” The proposed regulatory amendment would change this rule to refer to the three new leaves referred to above.
Section 3.0.1 states that where construction employees receive 0.8 per cent or more of their hourly rate or wages for personal emergency pay, they are not entitled to the paid PEL days, but they remain entitled to take the 10 unpaid PEL days. As a result of the changes proposed by Bill 47, if passed, this provision would no longer be necessary.
Equal Pay for Equal Work Based on Employment Status
If passed, Bill 47 would repeal section 42. 1 of the ESA which relates to equal pay for equal work based on employment status. As a result of the repeal, the exemptions from this provision found in section 9.1 of O. Reg. 285/01 would no longer be necessary.
If passed, Bill 47 would repeal sections 27 (2), (3) and (5) of the ESA which relate to scheduling.
O. Reg. 285/01, as amended by O. Reg. 526/17, contains exemptions from the scheduling and related record-keeping provisions of the ESA. Both the ESA provisions, and the corresponding regulatory provisions (sections 4.1, 4.2) were to come into force on January 1, 2019. As a result of the proposed Bill 47 changes, sections 4.1 and 4.2 of the regulation would no longer be necessary.
Modified Three Hour Rule Exemption
If passed, Bill 47 would provide for a modified three hour rule under Part VII.1 (s. 21.2) of the ESA.
Section 5(7) of O. Reg. 285/01 contains the three hour rule for the purpose of determining whether an employee (other than a student) has been paid the minimum wage.
Employees in occupations currently exempt from Part IX (Minimum Wage) of the ESA are exempt from the rule in section 5(7) of the regulation. The proposed regulatory amendment would also exempt those employees from the modified three hour rule found in the new Part VII.1 (s. 21.2) of the ESA.
The government has invited comments on these regulatory proposals by December 16, 2018.