Bill 148 Update: Getting Ready for “On-Call” Changes to the Employment Standards Act

Since the passage of Bill 148, (Fair Workplaces, Better Jobs Act, 2017), which made significant changes to the Employment Standards Act, 2000 (the “ESA”), employers have been trying to keep track of the new obligations under the legislation and how they will impact their ability to manage business.

The change dealing with on-call employees comes into effect on January 1, 2019. Employers who employ on-call workers will need to understand how this will impact their day-to-day operations and whether policies and pay practices require updating.

Currently, the ESA does not require any payment to an employee on call if they are not called in or required to work. However, where an employee regularly works more than three hours, but is called in and works fewer than three hours, the employee is entitled to a minimum of three hours of pay at the employee’s regular wage. This is commonly referred to as the “three-hour rule.”

As of January 1, 2019, an on-call employee who is not required to work or is required to work but works less than three hours (despite being available to work longer) must receive pay for three hours, equal to the greater of the following:

• wages equal to the employee’s regular rate for three hours of work; or
• the sum of the amount the employee earned for time worked, and wages equal to the employee’s regular rate for the remainder of the time.

The on-call pay only applies once in each 24-hour period, beginning at the start of the first time during that period that the employee is on call. This means that even if an employee is on call multiple times during a 24-hour period, the employee could only trigger entitlement for three hours on one occasion during that 24-hour period.

Also, as of January 1, 2019, an employee will have the right to refuse a shift or on-call period, but only where the employee was not previously scheduled and where the request is made by the employer less than 96 hours before the proposed start time. Employees will also be entitled to three hours of pay at the regular rate if an employee’s entire scheduled day of work or scheduled on-call period is cancelled within 48 hours of its intended start time.

There are exemptions, including:

• where the employer is unable to provide work for an employee due to an extraordinary cause beyond the employer’s control that results in a work stoppage (fire, storm, power failure, etc.)
• if the employer required the employee to be on call to ensure the continued delivery of essential public services, regardless of who delivers those services and the employee who was on call was not required to work.
• where the nature of the work is weather-dependent, and the employer cannot provide the work for weather-related reasons. However, it remains to be seen whether this exemption will be applied liberally to an employer whose business is only indirectly impacted by weather.

Bill 148 also recognizes that the collective agreement provision may conflict with the updated scheduling provision. In an attempt to ensure all collective agreements in Ontario comply with the new requirements, Bill 148 contains a grandfathering provision. Any provision of a collective agreement in force as of January 1, 2019 that conflicts with any of the updated on-call pay entitlements, the right to refuse a shift or the right to cancel a scheduled day of work or on-call period is grandfathered to the earlier of the expiry of the collective agreement or January 1, 2020.

Employers impacted by this change need to plan in advance of the on-call provisions coming into effect on January 1, 2019. Consider the following:

• Review your operational needs. Are on-call employees required? Can the need for on-call services be met by regular employee scheduling?
• If the on-call employee is “on call” for a period longer than a day (for example, on call for a week), re-consider how any compensation is currently being paid. Adjust policy and payment to identify and ensure the three-hour per day rule is being met;
• Determine which employees are on call or are returning to work (call-back) during their regularly-scheduled work day;
• Consider overtime as an alternative option on an as-needed/as-requested basis, without having an on-call requirement; and
• Ensure that duties can be performed for the 3-hour minimum call-in duration.

As Bill 148 matures, we expect that there will continue to be questions concerning its interpretation. Stay tuned for more!