February 16, 2009 marks the second Family Day since its recognition as a public holiday in Ontario. When Family Day was first announced last year, we produced an Employers’ Alert to address questions put forward by our employer clients. As Family Day is this upcoming Monday, we wanted to provide you with some updated information. The following provides updated information to questions put forward by some of our employer clients:

Question One: Does Family Day apply to all employees in Ontario?  

Answer: No.  

Family Day is only applicable to provincially regulated employees because it is a holiday created by a provincial statute, the Employment Standards Act (“ESA”). Federally regulated employers such as banks, airports, and telecommunications companies, are not required to give employees the day off.  

Question Two: Do employees who already have more holidays than what is allowed under the ESA benefit from Family Day?  

Answer: It depends.  

Many employment contracts and collective agreements provide for more holidays than the nine public holidays which are currently provided for under the ESA. The ESA specifically provides for the following public holidays:  

  1. New Year’s Day
  2. Good Friday
  3. Victoria Day
  4. Canada Day
  5. Labour Day
  6. Thanksgiving Day
  7. Christmas Day
  8. Boxing Day
  9. Family Day

Should an employment contract provide for more than nine public holidays (i.e. Easter Monday), then the ESA public holiday provisions do not apply. For this position to apply, the number of holidays must be greater than but not only equal to the number of public holidays provided in the ESA. Employers should always review the specific language of the contract when deciding whether the ESA applies and how to treat Family Day.  

Question Three: Can employees be required to use a “floater day” on February 16th as their Family Day, if they are given “floater days” in addition to statutory holidays?  

Answer: It depends.  

Decisions by the Labour Relations Board in the past regarding other statutory holidays suggest that an employee can be required to take a floater day for a new statutory holiday provided the employee is provided with a greater right or benefit than what is required under the ESA. In other words, they must have no less paid time off from work than the statutory holidays provided under the ESA.  

However, it is important to note that employers should seek legal advice before taking this approach as the specific terms of their policy may not permit such an interpretation. One such example would be where the employer’s policy states that employees receive paid days for “all statutory holidays plus” a prescribed number of floater days.  

Question Four: Can employees be compelled to work on Family Day?  

Answer: No.  

Generally speaking, employers must allow employees a day off for Family Day. The ESA provides an exception for those employed in areas such as a hospital, a continuous operation, or a hotel, motel, tourist resort, restaurant or tavern. In these areas an employer can require an employee to work on a public holiday if it falls on a day that an employee would normally have worked as long as the employer provides a substitute day off with pay, or if they provide the required premium owed.  

For those who have the right to refuse to work on a public holiday, an employee can nevertheless agree in writing to work. If this is the case, the employee is entitled to wages at his or her regular rate for all hours worked on the public holiday plus another regular working day off with public holiday pay. Alternatively, the employee is entitled to public holiday pay plus premium pay, set at 1 ½ times the employee’s regular rate for all hours worked on the public holiday. In the second scenario the employee is not provided a substitute day off.  

Question Five: What rate of pay applies to those who work on Family Day?

All employers who require an employee to work on Family Day must provide the regular rate of pay and one and one-half times their regular rate of pay for each hour worked on that day. Holiday pay is calculated based on the employee’s earnings in the previous four weeks of work.  

Question Six: In which workplaces does Family Day apply?  

In addition to the ESA, which provides that Family Day is a holiday for most employers, the Retail Business Holidays Act (“RBHA”) lays out which retail businesses are able to remain open on any statutory holiday. The Act considers Family day to be a “holiday”, meaning that retail businesses are not legally permitted to sell any goods or services or to admit members of the public on Family Day. Therefore, unless an exemption applies, retail businesses cannot open for business on Family Day.  

Where can I get more information? Further information on these issues can be found:  

  • In the Employment Standards Act, 2000 located at http://www.e-laws.gov.on.ca;  
  • By Calling the Employment Standards Information Centre at 1-800-531-5551;  
  • By going to the Ministry of Labour’s website at: http://www.labor.gov.on.ca/english/es/