Long weekends – loved by all, but what are my rights? The Employment Standards Act, 2000 of Ontario applies. What both employees and employers need to know:
What is Public Holiday Pay and When is it Paid?
Public holiday pay is given to employees regardless of whether they work on a public holiday.
On a public holiday, employees have two options:
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Work: most employees have the right to refuse to work a paid holiday, but if an employee agrees in writing to work, s/he must be paid premium pay plus holiday pay OR s/he must be paid regular pay and given another day off as a substitute.
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Do not Work: where an employee does not work a public holiday s/he is entitled to paid holiday pay.
Who Qualifies for Public Holiday Pay?
In order to qualify for public holiday pay an employee must:
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Satisfy the First and Last Rule: employees must not miss (without reasonable cause) the next day before and after the holiday that they are scheduled to work
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Work the entire shift (if choosing to work the holiday): the employee must work the agreed-upon time unless there is reasonable cause
Note: Reasonable cause is generally established where work is missed because of an event that was beyond the control of the employee; employees bear the burden of proving a reasonable cause
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Not be exempt: Some industries are exempted from holiday pay; see the Ontario Ministry of Labours website for more information on which employees do not qualify for holiday pay
How is Public Holiday Pay Calculated?
Holiday pay is calculated by taking the regular wage (not including overtime or premium pay) payable to the employee for the previous four weeks divided by 20. The four weeks is based on the work weeks completed by the employee not based on calendar weeks. Premium pay is calculated by multiplying regular wage by 1.5.
See the Ontario Ministry of Labors website for a calculator that can be used to determine employee holiday pay.
Other Issues
Public holiday pay can be confusing where an employee fails to meet all requirements. For example:
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If an employee is on vacation or doesnt usually work on the holiday: the employee is entitled to either a substitute holiday day plus holiday pay or public holiday pay instead of the substitute day.
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If an employee fails to work the holiday: based on what was originally agreed to the employee is entitled to a substitute day off with holiday pay OR the employee is entitled to holiday but is only entitled to premium pay for the hours they actually worked.
This BLAWG is general and informational only. It is not legal advice and not intended to be. Your circumstances may require specific/more information.
More information: [email protected] www.wardlegal.ca
