The Employment Standards Act, 2000 (“ESA”) is the primary piece of legislation governing Ontario’s workplaces. It establishes minimum standards with respect to hours of work, overtime, vacation, public holidays, wages, leaves of absence, layoffs, terminations, severance, and other work-related issues. The Ontario Ministry of Labour administers the ESA through various education and enforcement campaigns, including publishing information to help employers and employees understand their rights and obligations, conducting proactive workplace inspections, investigation possible violations of the ESA, resolving employee complaints, and enforcing the ESA. In this article, I discuss some key issues of interest recently to hospitals and those who work in hospitals.
How does the ESA apply to hospitals and hospital employees?
Most employers in Ontario, including hospitals, are covered by the ESA. However, certain types of workers are exempt from the application of the ESA, or are subject to special rules. For example, the ESA does not apply to anyone who performs services as an independent contractor, for any entity. In addition:
- Unlike employees in other establishments, hospital employees can be required to work on a public holiday (so long as the hospital provides a substitute day off with pay).
- Duly qualified practitioners of chiropody, chiropractic, dentistry, massage therapy, medicine, optometry, pharmacy, physiotherapy and psychology, and students training for these professions, are exempt from most protections in the ESA, except those protections pertaining to notice of termination and severance pay. So, for example, there is no limit on the number of hours they can be required to work, they are not entitled to overtime pay, they are not entitled to vacations with pay, and they are not entitled to public holidays.
- The above-noted practitioners and students, and other professionals listed under Schedule 1 of the #Regulated Health Professions Act, 1991 (including audiologists, dieticians, medical radiation technologists, medical laboratory technologists, opticians, midwives, nurses, occupational therapists, respiratory therapists and speech language therapists) are subject to special rules regarding leaves of absence. In particular, these individuals may not take personal emergency leave if doing so “would constitute an act of professional misconduct or a dereliction of professional duty”. (The personal emergency leave provisions would otherwise allow employees to take up to ten days off, without pay, in each calendar year due to their own personal illness or the illness, death, medical emergency or other urgent matter concerning a close relative.)
Hospitals typically employ a number of casual (also sometimes called relief, or elect-to-work) employees, particularly in the nursing field. Historically, casual employees were exempt from the entitlement to paid public holidays, and were not entitled to notice of termination or severance pay. However, in recent years the ESA has been amended such that casual employees now enjoy all of the same protections as regular employees. As of January 2, 2009, casual employees are entitled to paid public holidays, and as of November 6, 2009, casual employees are entitled to receive notice of termination (or pay in lieu thereof) and severance pay (if the standard qualifying conditions are met).
Hours of work refresher
The ESA provides that most employees cannot be required to work more than eight hours in a day (or the number of hours in an established, regular work day that may be longer than eight hours in a day) and 48 hours in a week. There are some exceptions: an employee can agree in writing to work up to a specified number of hours in excess of the daily maximum, and an employee can work up to a specified number of hours in excess of the weekly maximum if he or she agrees to do so in writing and the employer obtains approval from the Director of Employment Standards.
Overtime pay refresher
The hours of work rules in the ESA should not be confused with the overtime pay rules. The ESA provides that eligible employees are entitled to overtime pay equal to one and one-half times their regular rate of pay for all hours worked beyond 44 in a week. If the employer agrees, and employee may take time off in lieu of overtime pay. In addition, employers and employees can agree to overage hours of work over two or more weeks for the purpose of determining one’s entitlement to overtime pay.
Hours of work and overtime pay exemptions
Employees are exempt from the hours of work protections, and are not eligible for overtime pay, if their work “is supervisory or managerial in character” and, to the extent they perform any non-supervisory or non-managerial tasks, they do so only on an “irregular or exceptional basis”. The supervisor/manager exemption is much narrower than is commonly assumed. The fact that a contract of employment or job description states that an employee is a supervisor or manager, or the fact that an employee is paid an annual salary rather than an hourly rate, is not determinative. The actual functions of the person must be assessed. Supervisory/managerial work typically involves the supervision of employees, but other managerial functions could include hiring and firing employees, responsibility for making substantial purchases, financial control and budgeting, production planning, and other tasks that include the regular exercise of independent discretion and judgment in management affairs.
A 2012 class action certification decision emphasizes the importance of assessing each employee’s duties individually to determine whether he or she is exempt from overtime pay and hours of work protections. In that case, groups of analysts, investment advisors and associate investment advisors at CIBC World Markets claimed that they were owed overtime pay because they were improperly classified as supervisors/managers and treated as exempt from the overtime pay requirement. The employees argued that their positions were not supervisory or managerial because they did not have decision-making authority, or any employees reporting to them. The Ontario Superior Court of Justice refused to certify the lawsuit as a class action because there was not sufficient commonality between the employees and their job functions to hold that they were all entitled to overtime pay, or not. The Court held that there had to be an individual assessment of each employee’s particular circumstances, and the similarity of job titles, or certain words within job titles, was not sufficient commonality.
The ESA is a complex and nuanced piece of legislation, outlining numerous rights and obligations affecting hospitals and those who work in them. In all cases, the legislation itself should be consulted, but this article provides an overview of some of the most pressing or recent topics of interest.