Advice on employee entitlement for Vacation and Public Holidays

1. Kathryn Kissinger HR Services 2013
Vacation and Public Holiday Pay

2. Vacation and Public Holiday Pay
The “hottest topic of the summer”! I get asked for
this information a lot, so today’s blog contains and
clarifies the information from the Employment
Standards Act, to help you to know the true rules
surrounding this confusing topic.
First we will talk about Vacation, then Public
Holidays.
Kathryn Kissinger HR Services 2013

3. Special Rule Tool
While most employees and employers in Ontario are covered by the
ESA, there are some employees to whom it does not apply at
all, there are some employees who are covered by the ESA
generally but who are exempted from certain parts of it, nd there
are some other employees who are covered by special rules that
change how certain parts of the ESA apply.
The Special Rule Tool can tell you about employees who are not
covered by the Public Holiday provisions of the ESA or who are
covered by special rules that change how employees are paid for
public holidays.
Kathryn Kissinger HR Services 2013

4. Special Rule Tool
 Please note—this tool is not law but a quick reference
that is provided for convenience. For the law, you must
refer to the ESA itself and to the regulations made
under it.
 To use the Tool, select one of the industry icons—then
choose the job category that best describes the job
 Jobs to which no exemptions or special rules apply are
not mentioned.
Kathryn Kissinger HR Services 2013

5. What Categories are Special?
 EMS, Healthcare, Health Professionals
 Manufacturing, Construction, Mining
 Hospitality Services, Sales
 Transportation
 Agriculture, Growing, Breeding, Keeping, and Fishing
 Household, Landscaping and Residential Building Services
 Government, White Collar, Professionals
 Other: Student Employees, Funeral Directors and
Embalmers, Television and Film, Temp Employees, and
Homeworkers
Kathryn Kissinger HR Services 2013

6. Vacation Pay and Vacation Time
Under Employment Standards legislation in
Ontario, Vacation Time and Vacation Pay are actually
two separate entities.
In most cases, employees take paid vacation time off
work and the two are blended together.
There are some occupations that are exempt from the
Vacation with Pay provision of the ESA. These
persons ARE, however, eligible for vacation time off, as
per the ESA.
Most professional occupations, such as lawyers, land
surveyors, dentists, etc. are in this category.
Kathryn Kissinger HR Services 2013

7. Vacation Pay and Vacation Time
You must check with the relevant Employment
Standards Act for the province/territory where the
employee is paid to confirm the amount of
vacation time and the amount of vacation pay to
which the employee is entitled.
 In Ontario, employees are entitled to a minimum
of 2 weeks of vacation time, and a minimum
4% of earned wages as vacation pay, with no
provision for increases.
Kathryn Kissinger HR Services 2013

8. Public Holidays Defined
The ESA defines a “Public Holiday” as any of the
following;
1. New Years Day 2. Good Friday
3. Victoria Day 4. Canada Day
5. Labour Day 6. Thanksgiving Day
7. Christmas Day 8. December 26
9. “Any day prescribed as a Public Holiday”, which means
either Family Day (3rd Monday in February), Easter
Monday, or Civic Holiday in August.
Kathryn Kissinger HR Services 2013

9. Public Holidays Defined
As long as the employee(s) receive a minimum 9 public
holidays off, it doesn’t matter which of the days they receive.
To clarify:
You have to give the first 8 holidays listed in the ESA. You
and the employee(s) agree that they will take the Civic Holiday
in August as the ninth holiday that they will receive.
Because the Ontario Government passed Family Day, you and
the employees can choose to substitute Family Day for the
Civic Holiday.
Kathryn Kissinger HR Services 2013

10. Public Holiday Pay
An employee’s public holiday pay for any public holiday
shall be equal to,
 the total amount of regular wages earned and
vacation pay payable to the employee in the four
work weeks before the work week in which the
public holiday occurred, divided by 20.
An employer who is required to pay premium pay to an
employee for working a public holiday shall pay the
employee at least one and one half (1.5) times his or her
regular rate.
Kathryn Kissinger HR Services 2013

11. Public Holiday Pay
If the Public holiday is ordinarily a working day for an
employee and the employee is not on vacation that day, the
employer has to give the employee the day off work and pay
him or her public holiday pay for that day.
If the Public holiday is not ordinarily a working day or
is a day on which the employee is on vacation, the employer
shall substitute another day that would ordinarily be a
working day for the employee to take off work and for
which he or she shall be paid public holiday pay as if the
substitute day were a public holiday.
Kathryn Kissinger HR Services 2013

12. Public Holiday Pay
Agreements to work on Public Holidays
 An employee and employer may agree that the
employee will work on a public holiday that may or
may not fall on a day that would ordinarily be a
working day for that employee or on a day on which
the employee is on vacation.
 In some cases, employees are required to work on
public holidays, such as retail or emergency
personnel.
Kathryn Kissinger HR Services 2013

13. Public Holiday Pay (cont.)
Employee’s entitlement
 The employer pays the employee’s wages at his or her
regular rate for the hours worked on the public holiday
and substitutes another day that would ordinarily be a
working day for the employee to take off work, and for
which he or she shall be paid public holiday pay as if the
substitute day were a public holiday;
or
 If the employee and the employer agree, the employer
shall pay the employee public holiday pay for the day plus
premium pay for each hour worked on that day.
Kathryn Kissinger HR Services 2013

14. Public Holiday Pay
Exception
 The employee has no entitlement to premiums if he or she
fails, without reasonable cause, to work all of his or her last
regularly scheduled day of work before the public holiday or all
of his or her first regularly scheduled day of work after the public
holiday.
Restriction (this applies in all cases where substitute days off
are given)
A day that is substituted for a public holiday shall be,
 a day that is no more than three months after the public holiday;
or
 if the employee and the employer agree, a day that is no more
than 12 months after the public holiday.Kathryn Kissinger HR Services 2013

15. Public Holiday Pay
What happens if the employee doesn’t work their
regular shift before or after the Public Holiday?
 If the employee performs all of the work that he or
she agreed to perform on the public holiday but
fails, without reasonable cause, to work all of his or
her last regularly scheduled day of work before or
all of his or her first regularly scheduled day of
work after the public holiday, the employer shall
give the employee premium pay for each hour
worked on the public holiday but the employee
has no other entitlement.
Kathryn Kissinger HR Services 2013

16. Public Holiday Pay
What happens if the employee shows up, but fails
to do any work on the Public Holiday?
 If the employee, without reasonable
cause, performs none of the work that he or she
agreed to perform on the public holiday, the
employee has no entitlement.
 If the employee, with reasonable
cause, performs none of the work that he or she
agreed to perform on the public holiday, the
employer shall give the employee a substitute day
off work or, if an agreement was made under the
premium pay clause, public holiday pay for the
public holiday.
Kathryn Kissinger HR Services 2013

17. Public Holiday Pay
 If the employee performs some of the work that he
or she agreed to perform on the public holiday but
fails, with reasonable cause, to perform all of it, the
employer shall give the employee wages at his or her
regular rate for the hours worked on the public
holiday and a substitute day off work;
 or, if an agreement was made under the premium
pay clause, public holiday pay for the public holiday
plus premium pay for each hour worked on the
public holiday.
Kathryn Kissinger HR Services 2013

18. Public Holiday Pay
Employees on leave or lay-off
 If a public holiday falls on a day that would not
ordinarily be a working day for an employee and
the employee is on a leave of absence under
section 46 or 48 of the ESA (only pregnancy or
parental leave) or is on layoff on that day, the
employee is entitled to public holiday pay for the
day but has no other entitlement with respect to
the public holiday.
Kathryn Kissinger HR Services 2013

19. Public Holiday Pay
Premium pay hours are not overtime hours
 If an employee receives premium pay for working
on a public holiday, the hours worked are not taken
into consideration in calculating overtime pay to
which the employee may be entitled.
If employment ends
 If the employment of an employee ends before a
day that has been substituted for a public
holiday, the employer still has to pay the employee
public holiday pay for that day.
Kathryn Kissinger HR Services 2013

20. For More Information:
 Kathryn Kissinger HR Services:
info@kissingerhrservices.com or 519-758-1952
 Employment Standards Act
www.e-laws.gov.on.ca/html/statutes/english/elaws_statutes_
 Special Rule Tool:
www.labour.gov.on.ca/english/es/tools/srt/index.php
Kathryn Kissinger HR Services 2013