For the May long weekend, I posted the top 5 public holiday questions that clients have asked me over the years. Well, another long weekend is upon us and, yes, there are more questions that I am tasked with answering. Below are 5 additional public holiday questions and answers under the Employment Standards Act, 2000 (“ESA”).
We have a company practice of having employees observe all public holidays on a Friday. Is this permissible?
Technically, the public holidays must be observed on their correct days. However, to the extent that an employer provides MORE holidays than the 9 statutory holidays set out in the ESA, the employer can claim a “greater right or benefit” is being provided to staff and, as such, the strict ESA rules will generally not apply
My company is a 24/7 operation. We have never allowed our staff to have Canada Day off. Is that permissible?
Yes, it is permissible. As a “continuous operation”, employers may require employees to work on the public holiday if the holiday falls on a day that the employee would normally work and the employee is not on vacation. However, employers must either (i) provide a substitute holiday off with public holiday pay; or (ii) pay the employee public holiday pay + premium pay for the day worked. Besides a “continuous operation”, the same applies to employees in certain other industries (e.g. hotel, tourist resort, nursing homes, etc.).
Our staff would like to choose when they take their substitute holiday? Do we have to give them that option?
No, you do not. When an employee works on a public holiday, he/she is entitled to be paid regular wages for the day and take a substitute holiday with public holiday pay. The language in the ESA states that “the employer shall… substitute another day that would ordinarily be a working day for the employee to take off work…” The substitute day must be taken within 3 months (or within 12 months with the employee’s agreement). Therefore, employers can generally pick the substitute holiday so long as the substitute holiday is an ordinary working day for the employee and taken within 3 months. In other words, if an employee wants the substitute holiday to be on a Friday, the employer does not have to comply with this request.
We recently dismissed an employee who did not take his substitute holiday. Do we have to pay him out?
Yes, an employee whose employment ceases (regardless of the reason) must be paid public holiday pay for the substitute day yet to be taken.
We have many staff currently on leave and lay-off, are they eligible for public holiday pay?
Yes, staff on leave/lay-off are still employed and therefore generally entitled to public holiday pay. However, because the formula for public holiday pay takes into account the last 4 weeks’ wages divided by 20, if no wages have been paid during the last 4 weeks, the public holiday pay total will equal zero. If some wages were paid, the public holiday pay will be minimal and certainly less than a full day’s pay.
Enjoy the long weekend…
Daniel Pugen
Ontario Employer Advisor
Published with permission from McCarthy Tétrault LLP
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