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Will you get a February holiday?

As of 2015, six provinces have implemented statutory holidays (also known as public holidays) in February. Ontario, Alberta, and Saskatchewan all celebrate Family Day on the third Monday of February, with British Columbia celebrating on the second Monday of the month. Manitoba and Prince Edward Island also have holidays on the third Monday of February, known, respectively, as Louis Riel Day and Islander Day. And in 2015, Nova Scotia will celebrate Heritage Day for the first time on the third Monday in February.

Employment standards legislation in most provinces provides the requirement for employees to get a paid day off on statutory holidays, or premium pay rates, together with a substitute day off, in the event employees must work on the holiday. Employment standards legislation also provides the conditions (which can be complicated) under which employees are eligible for the statutory holiday pay, including, in some cases, minimum service requirements and/or attendance for the previously scheduled shift.

The tricky part from a policy perspective is for employers in jurisdictions which have “greater rights or benefits” clauses or “substitute day” clauses in the employment standards legislation.

Employment standards legislation in some provinces, including Ontario, Alberta and Prince Edward Island, have clauses which provide that where an employer has a collective or other agreement, contract or custom which provides for a greater benefit than the legislation, the employment standard does not apply.

In other provinces, even where there is no “greater benefit” clause, there is often an ability for employers to reach agreement with the majority of their employees to observe public holidays on substitute days (although sometimes requiring the consent of the employment standards director).

So, in Ontario, for example, if an employer provides employees with at least ten other “holidays”, it does not have to give a holiday on Family Day. The Ontario Ministry of Labour has confirmed that an employer in this situation may, indeed, opt out of providing the Family Day holiday. Similarly, Prince Edward Island provides for seven paid holidays, so an employer who provides more than seven holidays would be providing a more favourable benefit to employees. Alberta provides for nine general holidays, but also states that any other day designated by the employer as a holiday (Boxing Day, Easter Monday or Alberta Heritage Day (August)), must follow the legislative rules governing holidays with respect to holiday pay, making it unclear whether employers in Alberta can opt out of providing a holiday on Family Day under the “greater benefits” clause.

Employers are in a no-win situation. Employers who do not provide a Family Day holiday because employees already get more than the minimum holidays, risk negative reaction from employees who want to spend the day with their families or who now have child care responsibilities (as kids are off school regardless). Employers who offer employees a choice between Family Day and another holiday (such as Boxing Day or the August long weekend holiday), even with a majority of employees in agreement, risk alienating at least some of the workforce, and will doubtless still have to deal with the absences of employees who want or need to be absent for the other holiday. Employers who decide to provide employees with all holidays incur the costs associated with it.

Employers’ public holiday policies should address these issues and clearly communicate to employees well in advance which days are observed, any process for determining a substitute holiday, and a process for those who must work on a holiday. And unless there are bona fide business reasons for providing a specific public holiday or substitute holiday on a specific day (such as any applicable retail closing legislation), employers are best advised to let a majority of employees determine if and when a substitute day for a public holiday should be held.

For more about public holidays, see the Human Resources PolicyPro chapter and sample policy on “Public Holidays”.

Michele Glassford

President and Managing Editor at DRH and Lawyer at MacKinnon Law Associates
Michele Glassford, is a lawyer, researcher and policy analyst with a background in employment and labour law.In addition to a part-time law practice in Stoney Creek, Ontario, Michele has worked in the field of labour adjustment for the Health Sector Training and Adjustment Program and has been a Researcher for the Canadian Broadcasting Corporation. Michele also holds the position of President and Managing Editor at D.R. Hancocks & Associates Inc., author of the Human Resources PolicyPros. Read more
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