July 10, 2018
In a new decision of significant interest to construction industry employers in Ontario, the Ontario Labour Relations Board has provided its interpretation of construction employees’ entitlement to personal emergency leave under the Employment Standards Act, 2000 (the “ESA”) and its regulations.
Most employees in Ontario with one or more week of service are entitled to two (2) days of paid personal emergency leave (“PEL”) as a result of amendments to the ESA made by Bill 148, the Fair Workplaces, Better Jobs Act. However, as we previously reported in, Regulations Clarify Application of Bill 148 Changes to Construction Employees, O. Reg. 526/17: Exemptions, Special Rules and Establishment of Minimum Wage, which amended O. Reg. 285/01, modifies the application of the paid personal emergency leave requirement to construction employees. A construction employee who receives 0.8% or more of his/her hourly wages for personal emergency pay is not entitled to the two (2) paid personal emergency leave days under the ESA, but will be entitled to ten (10) unpaid leave days in each calendar year.
In IBEW Electrical Power Council Of Ontario v Electrical Power Systems Construction Association, two unions brought grievances against EPSCA after it issued a notice requiring its member employers to pay out an additional 0.8% of employees’ base hourly rate on all hours worked (excluding overtime hours) commencing May 1, 2018 as “personal emergency pay”, pursuant to the construction industry exemption in O. Reg. 285/01, as amended. EPSCA took the position that, by doing so, its member contractors would not have to also provide their employees with two (2) paid personal emergency leave days under the ESA.
The OLRB made the following important findings with respect to paid personal emergency leave in the construction industry:
This decision provides much-needed guidance on how construction employers can properly engage the construction exemption from the new statutory obligation to provide paid personal emergency leave.
Employers with questions or concerns about the effect of this decision on their current practices are encouraged to contact a Mathews Dinsdale lawyer .