Can I ask staff to work on a public holiday?

by Peninsula Vice President of Operations and Legal Ryan Wozniak

With Victoria Day coming up on May 20th, now is a good time to review your employer obligations during public holidays (statutory holidays). Knowing how to calculate public holiday pay correctly and when to give employees substitute holidays ensures that your business is operating in compliance with workplace legislation. Below are four common questions employers have about staff working on statutory holidays.

Can employees work on a public holiday?
In Ontario, almost all workers are entitled to a paid day off work on a statutory holiday. The Employment Standards Act (ESA) determines which employees may have the day off. Employers in certain industries, including restaurants and hotels, may require their employees to work. Consult the ESA for a full list of exempt businesses.

Employees with entitlement may agree, in writing or electronically, to work on a statutory holiday. If they work, employees must receive correct pay and, if applicable, time off in lieu (TOIL).

How is public holiday pay calculated?
As employers, Ontario’s business owners have an obligation to ensure their workers are compensated correctly during a public holiday. Workers who take the holiday off must also receive public holiday pay (statutory holiday pay), which is calculated as follows:

• If the holiday took place between January 1, 2018 and June 30, 2018, statutory holiday pay equals all the regular wages earned by the employee in the pay period before the holiday, divided by the number of days they worked in that period.
• If the holiday takes place after July 1, 2018, statutory holiday pay is all the regular wages earned by the employee in the four weeks preceding the week of the holiday plus all the vacation pay due to the employee during that four-week period, divided by 20.

Employees working on a public holiday must receive either:

1. regular wages for all hours worked on the holiday plus a substitute day off work with statutory holiday pay, or
2. statutory holiday pay plus premium pay for all hours worked on the holiday (without a substitute paid day off work). Premium pay is 1.5 times the employee’s regular wage.

What are the rules for taking time off in lieu?
If an employee agrees to work on a statutory holiday and receive regular wages, they must be compensated with a substitute day off work and statutory holiday pay. The substitute holiday must be provided within three months of the statutory holiday, or if the employee agrees in writing or electronically, within 12 months.

When giving TOIL, employers must provide the employees with a written notice before the statutory holiday. It should state the date of the substitute holiday, the statutory holiday being substituted and the date the notice was given.

What should employers do if an employee misses work on a public holiday?
It may seem suspicious when a worker scheduled to work on a statutory holiday calls in sick. Before voicing concerns, employers should follow a few best practices. Once the employee comes back in to work, employers can conduct a return to work interview, request proof of illness and check absence patterns. These steps should give a better idea of whether the employee is telling the truth. Disciplinary action may be needed if unfounded absences continue.

The rules for statutory holiday pay and TOIL change if an employee was absent. Employees who miss work without reasonable cause are not eligible for statutory holiday pay or a substitute paid day off work. If there is reasonable cause for them missing work, employees are eligible for the following entitlements:

• • If they had agreed to work on the statutory holiday with regular wages, they may take a substitute day off work with statutory holiday pay.
• • If they had agreed to work on the statutory holiday with premium pay, they are only entitled to statutory holiday pay. Since they did not do any work on the holiday, they do not receive premium pay.