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As we begin the year, with our snow and cold – many of us start to look toward the next holiday. Here in Ontario, our provincial government recognizes a ninth public holiday – "Family Day" under the Employment Standards Act, 2000 (ESA).

Since first introduced in 2008, the third Monday in February has been designated Family Day. What does this mean for employees and employers?

Firstly, not everyone will be on holiday on February 21st. The ESA does not apply to federally regulated workplaces – airlines, banks, post offices, radio and television stations, the Federal Public Service or most railways. Nor do the public holiday provisions of the ESA apply to provincial government or provincial Crown agency employees.

In addition, many hospitality services, hospitals, nursing homes and other workplaces with continuous operations may require employees to work on public holidays. The employee who works the holiday, and qualifies, receives additional compensation as a result – (a) the employer shall pay to the employee wages at his or her regular rate for the hours worked on the public holiday and substitute another day that would ordinarily be a working day for the employee to take off work and for which he or she shall be paid public holiday pay as if the substitute day were a public holiday; or (b) if the employee and the employer agree, the employer shall pay to the employee public holiday pay for the day plus premium pay for each hour worked on that day. ESA, c. 41, s. 27 (2).

Secondly, where there is an employment contract that provides a "greater benefit", i.e., one that recognizes public holidays above the ESA requirement, this may be interpreted to mean that the employer is not required to recognize the new Family Day. Employers should exercise caution in taking such an approach, as the legislative intention of Family Day was to provide a collective holiday when all members of families could be together. The provision of, for example, floater holiday days is arguably a lesser benefit than a scheduled entitlement. There are often conditions attached to floater days such as a requirement that they be taken on a mutually agreeable time or a "use it or lose it" aspect where the entitlement is lost if not used within a certain time period.

Careful review and consideration of existing employment contracts or collective agreements in effect is necessary.

Author: Ella Forbes-Chilibeck, Copyright 2011 Nelligan O'Brien Payne LLP

This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2021 Nelligan O’Brien Payne LLP.

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