The Ontario Employment Standards Act 2000 (ESA) sets out the rights and responsibilities of employees and employers in Ontario. The ESA provides the minimum standards of employment both employers and employees must follow, including wages, leaves of absence, work hours, notice and severance pay upon termination.
With a few exceptions, the Employment Standards Act applies to most employees and employers in Ontario. The following is a list of industries and jobs not covered by the Employment Standards Act:
- Employers and employees within the legislative jurisdiction of the Parliament of Canada
- Employers and employees of an embassy or consulate of a foreign nation
- Secondary school students employed under a work experience program authorized by their school board
- Post-secondary students employed under work experience programs approved by their college or university
- Politicians, judges, religious officials, members of quasi-judicial tribunals, or elected trade union officials
- Police officers (except for Part XVI of the ESA Ontario which covers lie detector sections)
- Directors of corporation, with certain exceptions
- People participating in the Community Participation Program under the Ontario Works program
- Inmates participating in work or rehabilitation programs
- Young offenders carrying out work as part of a sentence or court order
- Employees in federally regulated industries, such as airlines, banks, post offices, etc.
No employer or employee can contract out of the provisions of the Employment Standards Act.
While the Ontario Employment Standards Act provides complete information of all employment related laws, here are some of the important topics covered by the ESA.
Hours of Work
Employees are not required to work more than 8 hours a day, or 48 hours a week, unless the employee and employer have an agreement to work more hours. For such an agreement to be valid, the employer must have provided the employee with a document, prepared by the Director of Employment Standards, which describes the rights of the employee and obligations of the employer. In the agreement, the employee must acknowledge that they have received this document.
An employee can cancel this agreement after giving two weeks’ written notice to their employer. Likewise, an employer can cancel this agreement after giving reasonable notice to the employee.
Hours free from work
Under the Employment Standards Act, employers must give at least 11 consecutive hours off work to their employee each day. This does not apply to employees who are on call or employees called in to work at a time they are not normally expected to work.
Employers must give employees at least 24 consecutive hours off work every week, or 48 consecutive hours off work in every period of two consecutive weeks. There are certain exceptions to working more than the maximum number of hours permitted, including to deal with an emergency, to deliver essential public services, and to perform urgent repair work.
Breaks
The Employment Standards Act requires all employees to receive an eating period of at least 30 minutes. An employee cannot work longer than 5 consecutive hours without an eating period.
To learn more about your entitlement to breaks under the Employment Standards Act, go to Lunch Break Laws in Ontario.
3-hour rule
If an employee, who normally works more than 3 hours in a day, is required to come into work for less than 3 hours, the employer must pay the employee for a minimum of 3 hours. This rule applies only if the employee is available to work for more than 3 hours.
Overtime pay
Under the Employment Standards Act, employers are to pay employees overtime pay of at least one and one-half times their regular hourly rate, when the employee works more than 44 hours in each week.
To learn about your entitlement to overtime pay and how it is calculated, go to Overtime Pay Ontario.
Minimum wage
An employer is required to pay their employees at least the minimum wage, with certain exceptions in place. As of October 1st 2023, the minimum wage in Ontario is $16.55 per hour for general employees, and $15.60 per hour for students.
While the minimum wage provisions of the ESA apply to most workers in Ontario, some services, including students under the age of 18 who work less than 28 hours a week, hunting or fishing guides, and employees who are homeworkers, are exempt from these provisions.
Statutory holidays in Ontario
The Employment Standards Act currently recognizes the following 9 public statutory holidays in Ontario:
- New Year’s Day
- Family Day
- Good Friday
- Victoria Day
- Canada Day
- Labour Day
- Thanksgiving
- Christmas
- Boxing Day
Easter Monday, Civic Holiday and Remembrance Day are not recognized by the law as a statutory holiday.
Employers must allow employees to take statutory holidays off, while giving them holiday pay. An employee of a hospital, continuous operation, hotel, motel, tourist resorts, restaurant or tavern may be required to work on a public holiday.
An employer required to pay holiday pay to their employees should pay one and one half times the employee’s regular hourly rate. To qualify for public holiday pay, employees must have worked their last scheduled hours before the holiday or their first scheduled hours after the holiday.
Vacation Pay
Under the Employment Standards Act, it is mandatory to pay vacation pay to all employees in Ontario, including salary, hourly and commission-based employees. Employees working for less than 5 years are entitled to at least 2 weeks of vacation, and at least 3 weeks when working for 5 years are more. This includes both active and inactive employment.
For employees working for less than 5 years, vacation pay is 4% of their wages, excluding vacation pay. For employees working for 5 years are more, vacation pay is 6% of their wages, excluding vacation pay.
Visit Vacation Pay Ontario to learn about unused vacation time and vacation pay upon termination.
Leave of Absence
The Employment Standards Act gives employees the right to take temporary leaves from work, without pay, while protecting their jobs. There are many types of leaves of absence, including pregnancy leave, parental leave and sick leave. The following are a few types of leaves of absence outlined in the Employment Standards Act.
Pregnancy Leave and Parental Leave
A pregnant employee is entitled to pregnancy leave for up to 17 weeks, without pay, unless her due date is less than 13 weeks since the start of her employment. Employees wishing to take pregnancy leave must give their employers at least 2 weeks written notice before the start of their pregnancy leave.
If an employee is entitled to parental leave, her pregnancy leave ends in 17 weeks. If she is not entitled to parental leave, her pregnancy leave ends either 17 weeks after the pregnancy leave began or 12 weeks after the birth, whichever is later.
Parental leave, which is different from pregnancy leave, allows birth mothers to take up to 61 weeks off. All other new parents are entitled to up to 63 weeks off.
Family Medical Leave and Family Caregiver Leave
An employee is entitled to a family medical leave for up to 28 weeks, without pay, to provide care to certain family members, given that a qualified health practitioner has provided a certificate stating that the family member has a serious medical condition with a significant risk of death. This leave can only be taken in periods of entire weeks.
An employee is entitled to family caregiver leave for up to 8 weeks, without pay, to provide care to certain family members, given that a qualified health practitioner has provided a certificate saying that the family member has a serious medical condition. This leave can only be taken in periods of entire weeks.
Critical Illness Leave
Under this provision, the Employment Standards Act allows an employee, who has been employed for at least 6 consecutive months, to take critical illness leave up to 37 weeks to provide care for a child, and critical illness leave up to 17 weeks to care for an adult.
Sick Leave
An employee is entitled to a total of 3 days in each calendar year for sick leave, provided that they have been employed for at least 2 consecutive weeks.
Bereavement Leave
The Employment Standards Act allows an employee who has worked for at least 2 consecutive weeks to take a total of 2 days for bereavement leave due to the death of a family member.
Termination
Termination can occur in one of three ways:
- When the employer dismisses the employee or is unable to continue employing them
- When the employer lays off the employee for a period longer than 13 weeks
- When the employer constructively dismisses the employee and the employee resigns as a direct result
There are many factors which can cause a constructive dismissal to occur. Go to Constructive Dismissal Ontario to learn about some common types of constructive dismissal and what to do if you have been constructively dismissed.
When terminating an employee, with cause, who has been employed for at least 3 months, the employer must provide either a written notice of termination to an employee, termination pay, or both. Failure to provide an employee without adequate notice, or pay in lieu of that notice, is considered a wrongful dismissal. The length of the notice period an employer must provide to the employee will depend on the length of the employment period.
To learn whether you are eligible to make a claim for wrongful dismissal, go to Wrongful Dismissal Lawyer.
Severance Pay
While most employees are entitled to termination pay, employees are only entitled to severance pay if they meet all of the following criteria:
- If the employer ended the employment of at least 50 staff members because all or part of the business is permanently closed
- If the employee was employed for at least 5 years
- If the employer had a global payroll of at least $2.5 million
To get an idea of how much severance you are owed, go to Severance Pay Calculator Ontario.
Is your employer staying compliant with the Ontario Employment Standards Act? If you believe your rights under the Employment Standards Act have been infringed, contact Monkhouse Law to see how one of our Employment Lawyers can assist you.
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