Changes to the Employment Standards Act, 2000

New ESA Poster Requirement

The Ministry of Labour has released a new version (6.0) of its Employment Standards Poster, Employment Standards in Ontario.

Posting

The new version of the poster must be posted in each of an employer’s workplaces in a location where it is likely to come to the attention of employees (printed out on letter-size 8 ½” X 11″ paper). The English version of the poster must be posted in each workplace. If the majority of the workplace speaks a language other than English and the Ministry has created a version in that other language (there are 11 different languages covered), a copy of the translated version must also be posted next to the English version.

Provide copies

Employers must provide copies of this version of the poster to all current employees by no later than June 19, 2015. Employees hired after May 20, 2015, must be given a copy within 30 days after their start date. The copy may be provided in hard copy, as an attachment in an email or via a link (but only where the employer can ensure the employee has reasonable access to a computer, can access a working link, has access to a printer and has knowledge to work all of this). Employees can request copies of the poster in a language other than English and if there is a translated version by the Ministry in that language, it must be provided.

You can access the poster for printing here.

Removal of $10,000 Monetary Limit

Previously, the Employment Standards Act, 2000, placed a $10,000 limit on the monetary amount that an Employment Standards Officer could order an employer to pay for the payment of wages owing to a single employee. If employees wanted to enforce an entitlement to wages greater than $10,000, they would have had to commence and pursue their claim in the court system.

Effective February 20, 2015, this monetary cap was removed through the Stronger Workplaces for a Stronger Economy Act, 2014.

This change impacts wages that became due to the employee on or after February 20, 2015. This is an important clarification – as any complaints for terminations prior to February 20, 2015 must be closely analyzed – the Employment Standards Act, 2000, provides that termination and severance pay is due the later of the employee’s next regular pay day or seven days after the termination. It is only where these amounts fall due on or after February 20, 2015, that the monetary cap removal will apply.

Limitation Period Extended from 6 Months to 2 Years

Under the same legislative changes, the Employment Standards Act, 2000 has recently seen the extension of liability for employers from 6 months to 2 years. Previously, an Employment Standards Officer could generally (some limited exceptions) only order an employer to pay wages that became due more than 6 months before the complaint was filed.

As of February 20, 2015, employees will be able to recover wages that became due 2 years before the employee filed her/his ESA complaint.
This obviously exposes employers to a much greater financial liability and attention should be focused on addressing any wage disputes or oversights on an ongoing basis.

Self-Reporting

Another new change to the ESA came into effect on May 20, 2015, which allows Employment Standards Officers to require an employer to self-audit regarding its compliance with the ESA. When an Officer is investigating a complaint, she/he may now provide the employer with written notice to conduct an examination of its records, practices or both for a specific time frame and with respect to a specific provision of the ESA to determine if the employer is in compliance. The employer must report the results of the examination to the Officer within the time frame stipulated in the notice. The notice will also set out the method to be used in carrying out the examination and the format of the report.

The most unique aspect of this legislative change is that the notice may also require the employer to include in the report:

1. an assessment of whether the employer has complied with the ESA;
2. an assessment of whether one or more employees are owed wages;
3. If the employer’s report includes an assessment that the employer has not complied with this Act or the regulations but no employees are owed wages as a result of the failure to comply, the employer shall include in the report a description of the measures that the employer has taken or will take to ensure that this Act or the regulations will be complied with
4. If wages are assessed as owed, to provide:
   1. The name of every employee who is owed wages and the amount of wages owed to the employee; and
   2. An explanation of how the amount of wages owed to the employee was determined.

If the employer has declared owed wages, the Officer can then require the employer to pay wages owed and the employer must provide proof of payment of the amount owed to the employee.

New Leaves of Absences

(1) Family Caregiver Leave (s. 49.3)

Employers (both large and small) are now required to provide an unpaid leave of absence up to 8 weeks in each calendar year for an employee who requests it to provide care or support to a family member diagnosed by a qualified healthcare practitioner (a physician, a registered nurse or a psychologist) as having a serious medical condition (regardless of whether the condition is chronic or episodic).

If requested by the employer, the employee shall provide the employer with a copy of the certificate.

Family members include:

1. The employee’s spouse.
2. A parent, step-parent or foster parent of the employee or the employee’s spouse.
3. A child, step-child or foster child of the employee or the employee’s spouse.
4. A grandparent, step-grandparent, grandchild or step-grandchild of the employee or the employee’s spouse.
5. The spouse of a child of the employee.
6. The employee’s brother or sister.
7. A relative of the employee who is dependent on the employee for care or assistance.
8. Any individual prescribed as a family member for the purpose of this section

(2) Critically Ill Child Care Leave (s.49.4)

Employers (big and small) must now provide an unpaid leave for up to 37 weeks in a 52 week period to provide care or support to a critically ill child. Employees must have been employed for at least six consecutive months to qualify.

A child is defined as a child, step-child, foster child or child who is under legal guardianship, and who is under 18 years of age.

A critically ill child means a child whose baseline state of health has significantly changed and whose life is at risk as a result of an illness or injury.

The employee must provide a medical certificate from a qualified health practitioner that states:

(a) states that the child is a critically ill child who requires the care or support of one or more parents; and
(b) sets out the period during which the child requires the care or support.

If the period of time set out in the certificate is less than 37 weeks, it is that time frame which is to be provided.

If the child remains critically ill after 52 weeks, the employee is entitled to take another leave, provided they otherwise meet the requirements.

(3) Crime-Related Child Death or Disappearance Leave (s. 49.5)

Employers (big and small) must now provide an unpaid leave up to 104 weeks to an employee who has been employed for at least 6 months, where the employee’s child dies and the circumstances around the death are likely the result of the commission of a crime and an unpaid leave of up to 52 weeks where the child has disappeared and it is likely the result of the commission of a crime. The leaves are to be taken in a single period.

Where the employee is charged with the crime or where the child is a probable party to the crime, the leave is not applicable.

A child is defined as a child, step-child or foster child who is under the age of 18.

If during the leave, the circumstances that made it probable that the child of the employee died or disappeared as a result of a crime change and it no longer seems probable that the child died or disappeared as a result of a crime, the employee’s entitlement to leave ends on the day on which it no longer seems probable.

If during the leave, the child is found alive, the employee is entitled to remain on leave for 14 days. If the child is found dead, the employee is entitled to take 104 weeks of leave from the day the child disappeared, whether or not the employee is still on leave when the child is found.