Top 5 Public Holiday Questions
The May long weekend is before us. The weather is great, the LCBO averted a labour disruption, and I suspect that traffic may be worse than usual getting out of the city. In honour of the long weekend, I have set out below the top 5 questions I am asked about public holidays under the Employment Standards Act ("ESA"):
1. Do we have to provide our staff with the civic holiday (first Monday in August)?
Although many employers provide their staff with the civic holiday, it is not required under the ESA. The required public holidays under the ESA are: New Year's Day, Family Day, Good Friday, Victoria Day, Canada Day, Labour Day, Thanksgiving Day, Christmas Day, Boxing Day.
2. When staff are off on the public holiday, we just pay them a day’s pay, right?
Not necessarily. Employees are entitled to “public holiday pay”, which is calculated by taking into account the last 4 weeks' wages (plus any vacation pay) and dividing that figure by 20. This calculation may be less than a day's pay (e.g., if the employee did not earn wages – maybe because of an unpaid leave – during the previous 4 weeks).
3. We provide our staff with two "floating holidays" (i.e., to be taken at the employee’s discretion) instead of Victoria Day. Is this permissible?
Generally speaking, yes it is. If an employer is providing more paid holidays (under the same conditions) than the ESA requires, this will generally be considered as a "greater right or benefit" than the statutory minimum and therefore permissible.
4. Can we just pay our staff "time-and-a-half" for working on a public holiday?
If the employee agrees to work during the public holiday, the employee can receive regular pay for the holiday worked plus a substitute holiday with “public holidays pay”. Alternatively, if the employee agrees, he/she can work the public holiday and receive “public holiday pay” PLUS “premium pay” (1.5 times an employee’s wages). Assuming the employee worked his/her regular schedule during the last 4 weeks, the “public holiday pay” will generally equal a day’s pay. Therefore, adding the “premium pay” can result in a total of 2.5 times the employee’s pay for the public holiday worked.
5. An employee has a history of calling in sick on the Friday before the holiday Monday. Is there anything we can do?
The employer can consider enforcing the “before and after” rule. Under the ESA, employees must generally work the shift before the public holiday and the shift after the public holiday to be entitled to the public holiday provisions of the ESA unless the employee can show reasonable cause for missing the shift. To the extent that the absence was not allowed by the employer (e.g., the employee does not have proper medical documentation for the absence) the employer can consider not paying the employee for the public holiday, as well as disciplining the employee.
Employment Standards Act Public Holidays