What are employees’ statutory holiday leave rights?

Statutory holidays are great days to spend extra time with family. However, the rights to statutory holiday pay and leave can be misunderstood. For example, employees can be required to work on statutory holidays. There is also different legislation that governs statutory holiday leave, depending on whether the employer is federally or provincially regulated. This blog is meant to help clarify how statutory holidays work in Ontario for both provincially and federally regulated employees. However, like all of our other blogs, this is not legal advice. It is best to get one of our lawyers to answer your specific questions about holiday pay and leave, as there are plenty of exceptions to the general rules that I set out below.

Both the provincial and federal legislation on statutory holidays set the minimum standards for holiday entitlements of employees. Employers can choose to give their employees more holidays in their policies. For example, a provincially regulated employer could choose to give their employees Remembrance Day off, despite it not being a legislated day off. However, once that date is in the policy, it rules the employer’s obligation to its employees.

Rights for provincially regulated employees

Most employees in Ontario are provincially regulated. Therefore, most employees have rights related to public holidays, which are regulated by the Employment Standards Act (ESA). Provincially, Ontario has nine public holidays: New Year’s Day, Family Day, Good Friday, Victoria Day, Canada Day, Labour Day, Thanksgiving Day, Christmas Day, and Boxing Day. Most employees are entitled to take these days off and receive public holiday pay.

However, in Ontario, an employee can, electronically or in writing, agree to work on a public holiday. For working on a public holiday, the employee can either receive (1) public holiday pay plus premium pay for all hours worked on the public holiday and not get a substitute holiday, or (2) their regular pay for all hours worked during the public holiday and be provided with a substitute holiday for which they must receive public holiday pay. Premium pay is 1.5 times an employee’s regular rate of pay.

A substitute holiday is another working day off that is designated to replace a public holiday where the employee receives public holiday pay. The substitute holiday must be another working day off that is no later than three months after the public holiday for which it was earned. However, if an employee agrees electronically or in writing, the substitute holiday can be up to 12 months after the public holiday. In such a case, the employee must then receive a written statement that sets out the date that the public holiday is being substituted for.

In most cases, the amount of public holiday pay that an employee is entitled to is calculated by taking all of the regular wages that an employee earned over the four weeks prior to the public holiday, adding all vacation pay payable in those four weeks, and then dividing that amount by twenty. To help demonstrate this formula, imagine Brady, who is an employee who earns $1200/week on a flat wage. Brady worked for the full four weeks before the public holiday began, taking no vacation pay:

$1200/week pay x 4 weeks

= $4800 of pay + $0 of vacation pay

= $4800 of pay ÷ 20

= $240 of public holiday pay for Brady

Generally, an employee will qualify for public holiday entitlements unless they break the first and last rule. The first and last rule disqualifies an employee from their public holiday entitlements when they (1) fail, without reasonable cause, to work all of their last regularly scheduled shift before the public holiday, (2) fail, without reasonable cause, to work all of their first regularly scheduled shift after the public holiday. To clarify, the first and last shifts do not have to be on the day immediately before and immediately after the holiday. Further, reasonable cause is something that is beyond the employee’s control, such as being sick.

The employee can also lose their public holiday entitlement if they fail, without reasonable cause, to work their entire shift during a public holiday if they agreed to or were required to work on that day. The loss of public holiday entitlement would not change an employee’s right to premium pay for every hour that they worked.

When a public holiday falls on a day that is not ordinarily a working day for an employee or during an employee’s vacation, the employee is entitled to either (1) a substitute holiday off with public holiday pay, or (2) just public holiday pay for the public holiday, if the employee agrees electronically or in writing.

Rights for federally regulated employees

Being a federally regulated employee is less common, as it is the exception to the general assumption that employees are provincially regulated. However, federally regulated employees get general holidays, which are regulated under the Canada Labour Code (CLC).

A general holiday is a specific day that employees, including managers and professionals, are entitled to a day off with pay. Federally regulated employees are entitled to ten paid general holidays a year. The ten general holidays are New Year’s Day, Good Friday, Victoria Day, Canada Day, Labour Day, National Day for Truth and Reconciliation, Thanksgiving Day, Remembrance Day, Christmas Day, and Boxing Day.

When a general holiday falls on a non-working day, employees still have entitlements. If New Year’s Day, Canada Day, National Day for Truth and Reconciliation, Remembrance Day, Christmas Day, or Boxing Day falls on a non-working day, such as Saturday or Sunday, the employee is entitled to a holiday with pay on the working day immediately before or after the general holiday. If one of the other general holidays lands on an employee’s non-working day, then the employer can grant the employee a substitute general holiday or give the employee an additional day of paid vacation.

When the employer substitutes a general holiday for another day, they must ensure that the employees generally agree on that other day. Specifically, if the employer is substituting a general holiday for another day for one employee, then the employer must get approval from that employee in writing. If the employer is substituting a general holiday for another day for multiple employees, then the employer must get 70% of the employees to agree and then post notice of the substitution day for at least 30 days for it to take effect.

Holiday pay for most federally regulated employees is one-twentieth (1/20^th) of an employee’s wages, excluding overtime, earned over the four weeks immediately before the week in which the general holiday occurs. Part-time employees are also entitled to general holiday pay, but their pay is adjusted to the number of hours that they worked. Employees are entitled to general holiday pay if the general holiday occurs when they are on personal leave, leave for victims of family violence, or bereavement leave, if they have completed at least three months of employment with the employer.

If an employee works on a general holiday and is entitled to general holiday pay, then the employer must give their employee no less than 1.5 times their regular rate of pay for the work that they completed on that day. Managers and professionals who are required to work on a general holiday will receive their regular rate of pay, however, they will receive a substitute holiday with pay.

How Suzanne Desrosiers Professional Corporation can help

As mentioned at the beginning of this blog, there are many exceptions to the general rules of holiday pay and leave set out above. Suzanne Desrosiers Professional Corporation can help you with your holiday pay and leave issues. It can be very costly to make a mistake regarding holiday pay or leave. To reach us, you can call us at 705-268-6492 or email us at info@sdlawtimmins.com.