(This Client Guide provides general information and is made available to provide a general description of the statutory employment standard for public holiday pay in Ontario. This is not intended to constitute legal advice, which by its nature is situation specific. The legal consequences of the minimum employment standards can be confusing and if you have questions about a specific employment standard or other legal problem, you should consult a lawyer who will provide legal advice only after reviewing all the facts relevant to your situation, rather than relying on the general information provided in this Guide.)

The Employment Standards Act of Ontario (the "Act") sets out provincial minimum standards for certain specified employment conditions in Ontario. Since these standards are minimums only, an individual contract of employment may well entitle an employee to benefits beyond the statutory minimum standards.

 

Exemptions

This standard does not apply to employees governed by the Canada Labour Code nor is it applicable to certain defined employees, such as embassy or consular employees and construction workers who receive a percentage payment greater than 7.3% to cover vacation pay or holiday pay. As well, the standard does not apply to those persons exempted from Part X of the Act, such as:

• high school or university students on a work experience program
• persons working under the Ontario Works Act
• inmates of a correctional facility
• young offenders performing community service as part of a court order
• politicians, judicial and quasi-judicial officials and religious officers
• an elected official of an organization, including a union
• police officers
• teacher
• student in training for any of the occupations above
• commercial fishers
• real estate salespersons
• commissioned salespersons who sell away from the employer's place of business (except route salespersons, who are entitled to holiday pay)
• most farm workers (there are some who may be entitled to holiday pay)
• firefighters
• hunting and fishing guides
• gardeners and swimming pool maintenance workers
• students who supervise children, students at camps for children and students at charitable programs (some exceptions to the exceptions may apply)
• superintendents, janitors and caretakers of residential buildings who reside in the buildings
• taxi drivers
• seasonal tourist workers

 

Public Holidays

A public holiday under the Employment Standards Act means any of the following:

1. New Year’s Day.

2. Good Friday.

3. Victoria Day.

4. Canada Day.

5. Labour Day.

6. Thanksgiving Day.

7. Christmas Day.

8. December 26.

 

Unlike the Interpretation Act, Remembrance Day is not a public holiday for the purposes of the Employment Standards Act. The August Civic Holiday, Good Friday and Easter Monday are also not public holidays for the purposes of the Employment Standards Act.

The commencement of the public holiday is calculated from the commencement of the shift in cases where the work period extends over two calendar days.

 

Pay Provisions

The Act provides that an employee is entitled to payment of holiday pay in an amount equal to the total amount of regular wages and vacation pay payable to the employee in the four work weeks before the work week in which the public holiday occurs, divided by 20. For most full-time employees who do not actually work on the holiday, this should be one day's pay. For part-time and employees who have been employed lees than four weeks, the result is a pro-rated amount, rather than a full day. Note that the work week may not coincide with the calendar weeks where an employer has adopted a work week that does not begin on a Sunday (as, of course, many have).

The calculation in the Act also creates certain potentially unexpected anomalies in some situations, such as New Year's Day pay, employees absent due to illness, those on unpaid vacation and employees on compressed work weeks.

If a public holiday falls on a day that would ordinarily be a working day for the employee (and the employee is not on vacation), the employee gets the day off and receives holiday pay for that day.

If a public holiday falls on a day that would not ordinarily be a working day for the employee (and the employee is not on vacation), the employee gets a substitute day off and receives holiday pay for that day. The substitute day off must be a day that ordinarily would be a working day for the employee. The substitute day off can be in advance of the public holiday. The employer can also designate another day within three months after the public holiday. As well, the employer and employee can agree in writing on a substitute day that is within 12 months after the public holiday. There a ministry policies that deal with irregularly scheduled employees.

An employer and employee can agree to have the employee work on a public holiday (whether or not the employee would otherwise be scheduled to work that day) and the employee will receive holiday pay for that day. In this case, the employer can designate a substitute day within three months after the public holiday. As well, the employer and employee can agree on a substitute day that is within 12 months after the public holiday. Alternatively, the employer and employee can agree to pay holiday pay plus premium pay for the hours worked on the public holiday, with no substitute day off.

For hospitals, continuous operations, tourist facilities, restaurants and bars, an employer can require the employee to work on a public holiday, subject to payment of holiday pay with a substitute day off; or, with employee agreement, to pay premium time in lieu of a substitute day off.

An employee may lose the entitlement to holiday pay if he or she fails to work a scheduled day after or before the holiday, without reasonable cause.