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Festive Season Has Three Public Holidays Under Employment Standards Act, 2000

Archived Backgrounder

Festive Season Has Three Public Holidays Under Employment Standards Act, 2000

Fact Sheet

Ministry of Labour

Many employees will get three public holidays off this festive season with public holiday pay. Three of the nine public holidays under Ontario's Employment Standards Act, 2000 are Christmas Day on December 25, Boxing Day on December 26 and New Year's Day on January 1.

QUALIFYING FOR PUBLIC HOLIDAY ENTITLEMENTS

Generally, employees qualify for public holiday entitlements unless they fail, without reasonable cause, to work:

  • Their entire regularly-scheduled shift before or after the public holiday; or
  • Their entire shift on the public holiday if they agreed or were required to work that day.

Public holiday pay is an amount equal to an employee's regular wages earned in the four work weeks prior to the public holiday plus any vacation pay payable during that period, divided by 20.

Employees who qualify for the public holiday entitlements can be full-time, part-time, permanent or on a limited-term contract. They can also be students. It does not matter how recently they were hired or how many days they worked before the public holiday.

ENTITLEMENTS IF YOU ARE SCHEDULED TO WORK ON ANY OF THE PUBLIC HOLIDAYS

Qualified employees are entitled to take off the public holiday with public holiday pay. They can also agree in writing to work on the public holidays and:

  • Be paid their regular rate for all hours worked on the public holidays plus receive a substitute holiday with public holiday pay; or
  • If the employee and employer agree in writing, be paid public holiday pay plus "premium pay" of one-and-a-half times their regular rate for all hours worked on the public holiday.

ENTITLEMENTS IF THE PUBLIC HOLIDAYS ARE NON-WORKING DAYS

For any public holiday that falls on a non-working or vacation day, qualified employees can either take a substitute work day off with public holiday pay or, if they agree in writing, they can receive public holiday pay for the public holiday with no substitute day off.

ENTITLEMENTS FOR NON-QUALIFIED EMPLOYEES

Generally, employees who don't qualify for public holiday entitlements must work on the public holiday if asked by their employer. Most non-qualified employees are entitled to be paid one-and-a-half times their regular rate of pay for each hour worked on the public holidays. There is no substitute day off.

If a non-qualified employee is not asked to work on the public holiday, he or she gets the day off with no pay.

SPECIAL RULES / EXCEPTIONS

Retail employees

Most employees who work in retail businesses - businesses that sell goods or services to the public - have the right to refuse to work on the public holidays even if they don't qualify for public holiday entitlements.

Retail employees who have agreed to work on the public holidays may still refuse the assignment if they give their employer 48 hours advance notice before the first hour of work on the public holiday.

However, these rules for retail employees do not apply to those who work for businesses that primarily:

  • Sell prepared meals (restaurants, cafeterias, cafés, etc.)
  • Rent living accommodations (hotels, tourist resorts, camps, inns, etc.)
  • Provide educational, recreational or amusement services to the public (museums, art galleries, sports stadiums, etc.)
  • Sell goods and services that are incidental to the businesses described above and are located on the same premises (museum gift shops, souvenir shops in sports stadiums, etc.).

Hospital, continuous operations and hospitality employees

Employees in hospitals, continuous operations and the hospitality industry may be required to work on the public holiday if it falls on a day they would normally work and if they are not on vacation. This applies to employees who work for hospitals, nursing homes, hotels, motels, tourist resorts, restaurants and taverns, as well as to employees who work for continuous operations (operations or parts of operations that do not shut down or close down more than once a week such as oil refineries and alarm monitoring companies).

Elect-to-work employees

Elect-to-work employees--those who decide without penalty whether or not to work when requested--are not covered by the public holidays provisions of the Employment Standards Act, 2000 except for the right to be paid one-and-a-half times their regular rate of pay for each hour worked on a public holiday. As of January 2, 2009, however, elect-to-work employees will have the same rights to public holiday entitlements as other workers.

EMPLOYEES NOT ELIGIBLE FOR PAID PUBLIC HOLIDAYS

Some employees are not eligible for public holiday entitlements because public holiday provisions under the Employment Standards Act, 2000 do not apply to certain jobs. These employees include:

  • Seasonal workers (employees who work for an employer no more than 16 weeks in a calendar year) in a hotel, motel, tourist resort, restaurant or tavern who are provided with room and board
  • Taxicab drivers
  • Professionals such as lawyers, doctors, teachers, architects, chiropodists, chiropractors, dentists, massage therapists, optometrists, pharmacists, professional engineers, physiotherapists, psychologists, public accountants, surveyors, veterinarians and those covered under the Drugless Practitioners Act
  • Students in training for any of the professions listed above
  • Students who instruct or supervise children or who work at a children's camp or recreational program operated by a charitable organization
  • Hunting and fishing guides, commercial fishers and some farm workers
  • Commissioned salespeople, except route salespeople, who normally work away from their employer's place of business
  • Employees who install and maintain swimming pools
  • Employees in landscape gardening, mushroom growing, or the growing, transporting and laying of sod
  • Employees who grow flowers or trees and shrubs for retail and wholesale trade
  • Employees who breed and board horses on a farm or who keep fur-bearing mammals for propagation or the production of pelts for commercial purposes
  • Construction workers who receive 7.7 per cent or more of their wages for vacation pay or holiday pay
  • Residential building superintendents, janitors or caretakers who live in the building
  • Firefighters
  • Registered real estate salespeople.

INFORMATION SOURCES

For more information, employees and employers may call the Ontario Ministry of Labour's Employment Standards Information Centre at (416) 326-7160 or 1-800-531-5551, visit the nearest ServiceOntario Centre, or the Ministry of Labour's website at www.labour.gov.on.ca

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