A legal expert explains how late amendments to Bill 148 will affect employers
Last Monday, it was back to work for the Ontario Government as the legislature resumed session. Over the course of the summer there had been consultations on the Bill which proposed changes to the Employment Standards Act and the Labour Relations Act as Bill 148 was placed in a committee stage during the summer months. We have previously blogged on Bill 148 when it was first introduced and you can read our overview of the proposed changes here. It is important for employers to be aware of the significant changes that are included in Bill 148 now that it is back before the legislature.
Unfortunately, most of the changes proposed and requested by employers were not adopted by the Committee on Finance and Economic Affairs and are not included in the revised Bill 148 that will receive second reading this Fall. On August 21, 2017 the Committee did adopt some proposals that have amended Bill 148 and are included in the legislation currently being considered. Below is an overview of some of the key areas that were modified by the Committee.
New Leave: Domestic or Sexual Violence
Leaves were an area of focus for the Committee and changes were adopted. A new leave has been added to the proposed legislation for domestic or sexual violence. Under this amendment an employee who is employed for at least 13 consecutive weeks is entitled to an unpaid leave of absence where that employee or the employee’s child experiences domestic or sexual violence. This new leave was added to Bill 148 and replaces the previous proposed amendment to allow personal emergency leave to be taken in response to domestic or sexual violence. As a result, employees will have access to both this new leave and personal emergency leave.
Extensions to Pregnancy and Parental Leave
Pregnancy and parental leave were also both modified by the Committee. The revised version of Bill 148 proposes to extend leave in the event of a still-birth or miscarriage from 6 weeks to 12 weeks after the loss. This change would be effective on January 1, 2018. Additionally, the length of parental leaves in other circumstances would be extended by a total of 26 weeks.
Record Keeping Requirements
Employers are also faced with additional record keeping requirements under the revised Bill 148 – mostly in relation to scheduling. For example, employers will need to keep records of the dates and times an employee was scheduled to work or be on call, records of any cancellations of a scheduled day of work, and the dates and times an employee worked.
Clarification on Scheduling
The provisions on scheduling in Bill 148 have been particularly controversial for the employer community. The Committee did include some modifications to these proposals. The Committee added language to make the right to refuse work when a request is made within 96 hours inapplicable where the work is to deal with an emergency, to remedy or reduce a threat to public safety or for other prescribed reasons. The Committee also added language to remove the obligation to pay a minimum of three hours at the regular rate when a shift is cancelled within 48 hours when the circumstances are beyond the employer’s control, which includes language where the employee’s work is weather dependent. Additionally, the Committee clarified that in order for an employee to receive the three hours pay the employee must have been able to work for the three hours.
Impact of a Collective Agreement
Employers who are unionized should take note the Committee has stipulated that a collective agreement will only prevail over the modified scheduling requirements if there is a conflict and the agreement is in place by January 1, 2019. Additionally the collective agreement terms that conflict with the new legislation will cease to apply at the earlier of January 1, 2020 or the end of the collective agreement. As a result all employers will be bound to this scheduling language by the latest of January 1, 2020.
The Liberals have shown no sign of pursuing the significant changes proposed in Bill 148. The Committee amendments have added some clarity to areas of concern such as scheduling but also place additional requirements on employers.
Bill 148 must still pass Second and Third Reading before it can become law. It is possible that Bill 148 may be referred back to Committee after Second Reading and undergo further changes. We will continue to update you on any further developments or changes to the proposed legislation. The lawyers at CCPartners can assist you in preparing for the changes likely to be implemented and navigating the legislation.
Related links:
185,000 jobs ‘at risk’ from minimum wage hike
Supermarket giant’s fears over minimum wage hike
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Unfortunately, most of the changes proposed and requested by employers were not adopted by the Committee on Finance and Economic Affairs and are not included in the revised Bill 148 that will receive second reading this Fall. On August 21, 2017 the Committee did adopt some proposals that have amended Bill 148 and are included in the legislation currently being considered. Below is an overview of some of the key areas that were modified by the Committee.
New Leave: Domestic or Sexual Violence
Leaves were an area of focus for the Committee and changes were adopted. A new leave has been added to the proposed legislation for domestic or sexual violence. Under this amendment an employee who is employed for at least 13 consecutive weeks is entitled to an unpaid leave of absence where that employee or the employee’s child experiences domestic or sexual violence. This new leave was added to Bill 148 and replaces the previous proposed amendment to allow personal emergency leave to be taken in response to domestic or sexual violence. As a result, employees will have access to both this new leave and personal emergency leave.
Extensions to Pregnancy and Parental Leave
Pregnancy and parental leave were also both modified by the Committee. The revised version of Bill 148 proposes to extend leave in the event of a still-birth or miscarriage from 6 weeks to 12 weeks after the loss. This change would be effective on January 1, 2018. Additionally, the length of parental leaves in other circumstances would be extended by a total of 26 weeks.
Record Keeping Requirements
Employers are also faced with additional record keeping requirements under the revised Bill 148 – mostly in relation to scheduling. For example, employers will need to keep records of the dates and times an employee was scheduled to work or be on call, records of any cancellations of a scheduled day of work, and the dates and times an employee worked.
Clarification on Scheduling
The provisions on scheduling in Bill 148 have been particularly controversial for the employer community. The Committee did include some modifications to these proposals. The Committee added language to make the right to refuse work when a request is made within 96 hours inapplicable where the work is to deal with an emergency, to remedy or reduce a threat to public safety or for other prescribed reasons. The Committee also added language to remove the obligation to pay a minimum of three hours at the regular rate when a shift is cancelled within 48 hours when the circumstances are beyond the employer’s control, which includes language where the employee’s work is weather dependent. Additionally, the Committee clarified that in order for an employee to receive the three hours pay the employee must have been able to work for the three hours.
Impact of a Collective Agreement
Employers who are unionized should take note the Committee has stipulated that a collective agreement will only prevail over the modified scheduling requirements if there is a conflict and the agreement is in place by January 1, 2019. Additionally the collective agreement terms that conflict with the new legislation will cease to apply at the earlier of January 1, 2020 or the end of the collective agreement. As a result all employers will be bound to this scheduling language by the latest of January 1, 2020.
The Liberals have shown no sign of pursuing the significant changes proposed in Bill 148. The Committee amendments have added some clarity to areas of concern such as scheduling but also place additional requirements on employers.
Bill 148 must still pass Second and Third Reading before it can become law. It is possible that Bill 148 may be referred back to Committee after Second Reading and undergo further changes. We will continue to update you on any further developments or changes to the proposed legislation. The lawyers at CCPartners can assist you in preparing for the changes likely to be implemented and navigating the legislation.
Related links:
185,000 jobs ‘at risk’ from minimum wage hike
Supermarket giant’s fears over minimum wage hike
Want the latest HR news direct to your inbox? Sign up for HRD Canada's daily newsletter.