This year, Canada Day (July 1) falls on a Thursday. Unlike some public holidays, which shift dates in order to provide a long weekend, Canada Day is always celebrated on the day it falls. This year, there has been much discussion of the fact that it creates a situation in which many people have Thursday off, and are then expected to return to work for one day before enjoying their weekend.
Some issues arise in relation to all statutory holidays. These include
- Who is entitled to the holiday?
- Can employees be required to work on the holiday?
- How does holiday pay work?
- What if someone doesn’t work the day before, or the day after, the holiday?
The timing of Canada Day this year makes this last question particularly relevant; what can employers do if an employee doesn’t show up for work on Friday, creating a four-day weekend?
The nature of some industries or operations is such that statutory holidays are not as absolute as in others. For example, people working in hotels, resorts, restaurants, bars, hospitals and nursing homes (this list is not exhaustive) can be required to work on a public holiday if the holiday falls on a day that the employee would normally work.
In Ontario, if someone is required to work on a statutory holiday, they are entitled to either:
- His or her regular rate for the hours worked on the public holiday, plus a substitute day off work with public holiday pay; or
- Public holiday pay plus premium pay for each hour worked.
The employer chooses which of these options will apply. If an employee is entitled to premium pay, they should be paid 1½ times their regular hourly rate.
If other employers want to remain open on Canada Day but close on Friday, they may have a hard time doing so. Employers with unionized workforces can negotiate such a plan with the union, which can bind all of its members. However, in a non-unionized environment, every affected worker would have to agree. In a mid-sized or large workplace, that is probably impractical.
Conversely, if employees “choose” not to come to work on Friday without being given the option, the “last and first” rule may well come into play. Basically, this rule provides that employees, otherwise entitled to a public holiday, will lose that entitlement if they fail without reasonable cause to work all of their last regularly scheduled day of work before the public holiday or all of their first regularly scheduled day of work after the public holiday. It is important to note the references to “scheduled” days; this does not necessary refer to the day immediately before or after the holiday.
“Reasonable cause” is a term often overlooked by employers who may seek to penalize anyone who does not work on their scheduled days before and after a holiday. Reasonable cause can include legitimate injury, illness, leave, etc. Just because an employee is not at work on their last scheduled day before the holiday or the first scheduled day after it, that does not mean that they are automatically disentitled.
Another area of frequent confusion is the calculation of holiday pay. According to Ontario’s Employment Standards Act, the amount of public holiday pay to which an employee is entitled is all of the regular wages earned by the employee in the four work weeks before the work week with the public holiday, plus all of the vacation pay payable to the employee with respect to the four work weeks before the work week with the public holiday, divided by 20. The Ontario Ministry of Labour offers a handy public holiday calculator on its website.
I’m curious to know if many organizations are attempting to remain open on July 1 and close on Friday—feel free to comment. And whatever you do, have a safe and happy Canada Day!
Stuart Rudner, Miller Thomson LLP
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