Canada: The Impact Of Bill 148 On Ontario Schools

After nearly two years of consultation with stakeholders, Ontario's legislature passed the Fair Workplaces, Better Job Act, 2017 ("Bill 148") on November 27, 2017. This legislation included numerous amendments to both Ontario's Employment Standards Act, 2000 (the "ESA") and Labour Relations Act, 1995 (the "LRA"). Bill 148 includes a range of significant changes to employment and labour laws in Ontario, creating substantial compliance obligations for all Ontario employers, including school boards and independent schools.

Among other things, practical issues for Ontario schools include:

• Changes to personal emergency leave
• New leaves of absence
• Equal pay for equal work
• New scheduling rules
• Minimum wage increases

With respect to school boards and independent schools with collective agreements, some of the changes contain transition rules that will allow the employer to rely on collective agreement provisions until the earlier of the expiry of the collective agreement or, at least January 1, 2020. For school boards, this should mean that they can rely on relevant provisions in their respective collective agreements until their expiry on August 31, 2019. However, these amendments should be reviewed by school boards during the next round of bargaining, because, at that time, they will come into effect. 

Changes to Personal Emergency Leave

Changes to personal emergency leave ("PEL") came into effect on January 1, 2018.

Prior to the passage of Bill 148, employees in workplaces with more than 50 employees had the right to take up to 10 days of unpaid, job-protected leave, each calendar year due to illness, injury, or medical emergency, and urgent matters concerning specified family members.

As of January 1, 2018, the ESA requires employers to give employees two paid PEL days and eight unpaid PEL days in each calendar year, if the employee has been employed for one week or longer. The paid PEL days must be taken first in a calendar year before the unpaid PEL days are taken. PEL pay is defined in the ESA as the wages the employee would have earned had they not taken the leave. The ESA also contains some new instructions on how to determine PEL pay when there are performance-related wages (such as commission), overtime, shift premiums or public holidays.

The ESA states that employers may require an employee to provide evidence reasonable in the circumstances that they are entitled to take PEL. Typically, employers have requested a note from a physician. As of January 1, 2018, the ESA prohibits an employer from requiring an employee to provide a certificate from a physician, registered nurse or psychologist as evidence of entitlement to take PEL. This prohibition has raised concern with employers who view it as a restriction on their ability to detect improper use of PEL days and manage absenteeism.

However, the ESA also contains subsection 5(2), known as the "greater benefit" section. Where an employment contract (including a collective agreement) directly relates to the same subject matter as an employment standard, and provides a greater benefit than the employment standard, the contract supersedes the ESA in that particular respect. There may, therefore, be circumstances in which an employer can argue that the paid time off provided under a contract or collective agreement is a greater benefit, and that the PEL standard does not apply. Employers may also have a reasonable argument that PEL days can be deducted from existing entitlements to paid and unpaid time off under employment contracts and collective agreements. A detailed review of the particular facts and applicable law is necessary in each case.

We also note that the Ministry of Labour has stated in its online document "Your Guide to the Employment Standards Act"¹ that there may be some situations outside the scope of PEL where an employer needs medical documentation in order to, for example, accommodate an employee or satisfy return to work obligations. According to the ministry guide, the ESA does not prohibit employers from requiring a medical note for these purposes.

New Leaves of Absence

As of December 3, 2017, Critical Illness Leave replaced Critically Ill Child Care Leave. It consists of two components:

1. Care or support provided to a critically ill minor child family member for up to 37 weeks in a 52-week period.
2. Care or support provided to a critically ill adult family member for up to 17 weeks in a 52-week period.

On January 1, 2018, an amendment to the Family Medical Leave came into force. The Family Medical Leave increased from 8 weeks to 28 weeks of leave in a 52-week period. A qualified medical practitioner who may issue a certificate necessary to take Family Medical Leave now includes a physician and a nurse practitioner.

There are a number of further new unpaid leaves that came into force on January 1, 2018. They include:

• 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.
• Domestic and Sexual Violence Leave for employees that have been employed for at least 13 consecutive weeks, which provides up to 10 individual days of leave and up to 15 weeks of job protected leave when an employee or their child has experienced or is threatened with domestic or sexual violence. The first five days of leave each calendar year would be paid, and the remainder would be unpaid.

The new legislation requires employers to put mechanisms in place to protect confidentiality of records they receive or produce in relation to an employee taking Domestic and Sexual Violence Leave.

Equal Pay for Equal Work

As of April 1, 2018, there will be two new equal pay provisions under the ESA. The one which will apply in most workplaces is section 42.1 of the ESA: An employer will be prohibited from paying a "rate of pay" which is less than the rate of pay provided to another employee because of a "difference in employment status" when the following conditions are met:

1. they perform substantially the same kind of work in the same establishment;
2. their performance requires substantially the same skill, effort and responsibility; and
3. their work is performed under similar working conditions.

The term "difference in employment status" is now a defined term in the ESA. It means:

1. a difference in the number of hours regularly worked by the employees; or
2. a difference in the term of their employment, including a difference in permanent, temporary, seasonal or casual status.

It should be noted that there are a number of exceptions that apply. Employers will be exempt from the new Equal Pay for Equal Work rules if the difference in pay is based on:

• A seniority system
• A merit system
• Systems that measure earnings by quantity or quality of production
• Other factors not related to employees' sex or employment status

An employee who believes his or her employer has not complied with equal pay provisions under section 42.1 may request a review of their rate of pay by the employer. In response, the employer is required to either adjust the employee's pay accordingly, or give a written response setting out the reasons why the employer disagrees with the employee.

Compliance with the new equal pay provisions will require information about particular positions, rates of pay, job descriptions, and the factors that explain the difference in the rates of pay.

Section 42.1 has a transition period for unionized employees. In this regard, if there is a conflict with a collective agreement provision, the equal pay provisions will only come into force upon the expiry of the school board collective agreements on August 31, 2019. For non-union employees, these changes come into effect on April 1, 2018.

The ESA also contains section 42.2, which prohibits temporary help agencies from paying a lower rate of pay to assignment employees than the rate of pay of an employee of the client who performs "equal work." Schools boards and independent schools should review whether they have contracts with any temporary help agencies, and seek legal advice on how Bill 148 applies to their particular circumstances.

New Scheduling Rules

New scheduling rules will come into effect on January 1, 2019. Some of these changes contain transition rules that will allow an employer to rely on collective agreement provisions until the earlier of the expiry of the collective agreement and January 1, 2020.

The scheduling rules are as follows:

• An employee may request a schedule or location change once he/she has been employed for three months. The request can be granted or denied, but the employer must provide reasons for the denial. This comes into effect January 1, 2019.
• An employee who regularly works more than three hours a day, reports to work but works less than three hours will be entitled to three hours' pay at their regular rate. This comes into effect January 1, 2019.
• Employees may refuse to work or be on call if the request is made by an employer with less than 96 hours' notice. There are some narrow exceptions relating to "emergency" as defined in the legislation. Although this comes into effect on January 1, 2019, collective agreements will prevail until their expiry, but no later than January 1, 2020.

Subject to certain exceptions, employers will also be required to pay wages to employees for three hours' work at the employee's regular rate, if the employee:

• has a shift cancelled within 48 hours of its scheduled start time.
• is scheduled to be on call, but despite being available to work, is either not called in to work or works less than three hours. This is required for each 24-hour period that the employee is on call.

These latter requirements come into effect on January 1, 2019; however, collective agreements will prevail until their expiry, but no later than January 1, 2020.

Minimum Wage Increases

On January 1, 2018, the general minimum wage increased to $14 per hour. An exception where a special minimum wage would apply are students under 18, who are entitled to a minimum wage of $13.15 per hour.

On January 1, 2019, the general minimum wage increases to $15 per hour. The exception where a special minimum wage would apply are students under 18, who will be entitled to a minimum wage of $14.10 per hour.

Special Rules

With respect to the education sector, a number of special rules and exceptions impact how the changes made under Bill 148 will play out in Ontario's school boards and independent schools. In particular, educators should take note of the following:

• Under Regulation 285/01 to the ESA, a teacher as defined in the Teaching Profession Act² is not permitted to take PEL in circumstances where taking such leave would constitute an act of professional misconduct or a dereliction of professional duty.
• Persons employed as students at a camp for children, or to instruct or supervise children, will continue to be exempt from entitlements to minimum wage, overtime and public holiday provisions. Changes to each of these provisions under Bill 148 will have no impact on individuals who are employed in this capacity.
• Under amendments to Regulation 285/01 that will come into force on April 1, 2018, the equal pay provisions in section 42.1 of the ESA will not apply to an employee who is a student under 18 years of age who works no more than 28 hours per week or who  is employed during school holidays.

In light of the amended provisions of the ESA that have been ushered in by Bill 148, Ontario's Ministry of Labour has committed to hiring 170 new Employment Standards Officers, and has promised to inspect one in every 10 workplaces in 2018. While the impact of these enforcement measures on schools remains to be determined, any Ontario school board or independent school dealing with an employment standards matter over the coming year can likely expect more active involvement from the Ministry of Labour than in years past.

Alongside the changes to employees' minimum entitlements under the ESA, Bill 148 has brought about numerous changes and additions to Ontario's labour relations regime under the LRA. School boards and independent schools operating in a unionized context or facing the possibility of unionization should take note of new provisions under the LRA that include the following:

• A union attempting to become certified may apply to the Ontario Labour Relations Board to have an employer school disclose names and contact information for employees in a proposed bargaining unit.
• If a union is certified, the parties will have access to mediation and arbitration overseen by the Ontario Labour Relations Board to facilitate the negotiation of a first collective agreement.
• During periods falling between the commencement of a legal strike/walkout and a new collective agreement, or between certification and a first collective agreement, employer schools are no longer permitted to discharge employees, except with cause.
• A union and employer school may agree in writing to have the Ontario Labour Relations Board review and change their bargaining unit structures.
• Maximum penalties for contravention of the LRA have been increased to $5,000 for individuals and to $100,000 for organizations.

In the school board context, it should be recognized that the Ontario Labour Relations Board has new broad powers to consolidate existing non-teacher bargaining units after certification or on application by the school board or the union. This new power could apply in circumstances where a union represents employees in a number of small bargaining units and there is a common interest to place them in a single collective agreement.

Now that Bill 148 has passed into law, the hard work of putting its provisions into effect has just begun for employers throughout Ontario. It is recommended that schools boards and independent schools update their employment policies and procedures to ensure compliance with the recent changes to the legislation. It is also recommended that prior to collective bargaining, employers understand the relevant new provisions that apply and when they will come into force.

Footnotes

1. Ministry of Labour, "Your guide to the Employment Standards Act."

2. Section 1 of the Teaching Profession Act, R.S.O. 1990, c. T.2 defines "teacher" as a person who is a member of the Ontario College of Teachers and is employed by a board as a teacher but does not include a supervisory officer, a principal, a vice-principal or an instructor in a teacher-training institution.

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