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This information is provided as general information only and should not be relied on as legal advice or opinion. (See: http://www.labour.gov.on.ca/english/es/family/faq.html#2)

FAMILY DAY

Why did the government add a public holiday?

The Government committed to add a holiday in February within the first year of its new mandate.

Ontarians work very hard and they deserve more time to spend with the people they love. The addition of Family Day means that Ontarians who are covered by the Employment Standards Act, 2000 (ESA) holiday provisions are entitled to a minimum of nine public holidays with public holiday pay.

When is Family Day?

Family Day will be held on the third Monday in February every year. In 2008, it will be held on Monday, Feb. 18. The regulation making Family Day a holiday under the Employment Standards Act, 2000 (ESA) came into force on Oct. 12, 2007.

It has been filed as Ontario Regulation 547/07. It was published on e-Laws on Oct. 16, 2007 and was published in the Ontario Gazette on Oct. 27, 2007.

What will be the benefits to employees to have this extra public holiday?

Generally speaking, most employees will get a day off with pay enabling them to spend time with their family and loved ones. It will also give employees a day off between New Year’s Day and Easter, which is a long period of time in which people need a rest.

How will the additional public holiday affect business and the economy?

Ontario’s economy is strong enough to accommodate an extra public holiday.

While there may be some initial impact on productivity, that will likely be made up when employees return to work.

Employees who get time off may work even harder when they are back on the job.

There is good reason to believe a mid-winter holiday may spark an increase in industries such as tourism and entertainment/leisure.

Is an employee who receives more than nine paid public holidays a year entitled to take Family Day off with holiday pay?

Ontarians who are covered by the ESA holiday provisions are entitled to a minimum of nine public holidays. If your employer provides 10 or more paid holidays, you may not automatically be entitled to Family Day. It is best to speak to your employer or union official to determine whether you will have Family Day off.

Why add a holiday in February instead of in the summer when the weather is good?

The time between New Year’s Day and Easter is long and people need a rest.

Family Day is currently recognized as a holiday in two other provinces – Alberta and Saskatchewan.

Now that Family Day has been added, how does Ontario compare to other jurisdictions regarding the number of public holidays per year?

The additional holiday gives Ontario employees a total of nine statutory holidays per year, the same as in Alberta and British Columbia and one less than in Saskatchewan.

Who will be eligible to take off Family Day?

Most employees will be eligible to take off Family Day. Generally if a public holiday falls on a day that would ordinarily be a working day, and the employee is not on vacation, he or she is entitled to the day off work and to be paid public holiday pay. However, the employee would not be entitled if he or she failed, without reasonable cause, to work all of his or her last regularly scheduled day of work before Family Day or all or his or her first regularly scheduled day of work after Family Day.

Qualified employees 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 (although that can affect the amount of their public holiday pay).

Will all Ontario workers be eligible to take off Family Day?

Most Ontario employees will be eligible to take off Family Day.

However, there are three categories of employees who may not have the right to the day off. These include employees who:

1. Are not covered by Ontario’s Employment Standards Act, 2000 (ESA) such as employees who work in federally-regulated workplaces such as banks, telecommunications companies, railways and airlines or who are federal civil servants.
2. Are covered by the ESA, but fall within a special rule or exemption involving the ESA’s public holiday provisions.

   Special Rule

   Employees who are employed in a hospital, hotel, motel, tourist resort, restaurant, tavern or "continuous operation" may be required to work on Family Day if it falls on a day that is ordinarily a working day for them and they are not on vacation. In that case, the employer must either pay the employee his or her regular wages for the day and provide a substitute day off with pay, or pay the employee public holiday pay for the day plus premium pay (one and a half times his or her regular rate) for each hour worked on the day. A continuous operation is one that normally operates 24 hours a day and shuts down no more than once in each seven-day period.

   Exemptions

   Employees in certain occupations and industries are exempt from the public holiday provisions of the ESA. They are not entitled to take Family Day off, and if their employer required them to work on Family Day, they would not be entitled to public holiday pay. 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
   • Certain 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
   • Hunting and fishing guides, commercial fishers and some farm workers
   • Construction workers who receive 7.7 per cent or more of their wages for vacation pay or holiday pay
   • Firefighters; and
   • Registered real estate salespeople.

   For more information on industries and jobs with special rules and/or special exemptions please see www.labour.gov.on.ca/english/es/guide/guide_21.html

3. Those whose collective agreement or employment contract is more generous to them in relation to public holidays than the public holiday provisions in the ESA.

   For example, if someone has an employment contract that provides them with 10 paid holidays a year, they would be receiving more than the ESA’s minimum requirement. This could be found to provide the employee with a greater right or benefit than the ESA’s holiday provisions (assuming that other aspects of the contract’s holiday provisions are at least as favourable to employees as the ESA holiday provisions). In this case, the holiday provisions of the employment contract would apply instead of those in the ESA.

   Many non-union employees do not have written employment contracts. In such a case, it would have to be determined what the employee’s contractual entitlement for holidays was. In this regard, the employer’s past practice would likely be relevant. So, if an employer has a practice of giving staff more than nine paid holidays, and continues to adhere to that practice and the practice is in other respects at least as favourable to employees as the ESA holiday provisions, the employer would likely be found to be providing a greater right or benefit for holidays than the ESA provides. That employer would not be required to provide employees with Family Day off work, but would certainly be free to do so.

What will happen if an employer refuses to give an employee Family Day off?

Family Day is a public holiday under the Employment Standards Act, 2000 (ESA). If an employee thinks the employer is not complying with the ESA, he or she can call the Ministry of Labour’s Employment Standards Information Centre at 416-326-7160 or toll free at 1-800-531-5551 for more information about the ESA and how to file a complaint. Complaints from non-union employees are investigated by an employment standards officer who can, if necessary, make orders against an employer, including an order to comply with the ESA. Unionized employees generally must use the grievance procedure under their collective agreement.

Will stores have to close on Family Day?

Under the Retail Business Holidays Act (RBHA), most retail outlets must close on a day that is a holiday under that act. For information on the RBHA you should contact the Ministry of Government and Consumer Services, which administers that act.

What will happen to unionized employees who are covered by collective agreements if their agreements do not include a provision for Family Day when the holiday takes place next February?

Unionized employees would be entitled to take Family Day off with holiday pay unless their collective agreement is more beneficial to them in relation to holidays than the ESA holiday provisions. In that case, the collective agreement holiday provisions, rather than the ESA holiday provisions, would apply.

For example, a collective agreement that does not recognize Family Day but that gives ten other holidays (assuming other aspects of the contract’s holiday provisions are at least as favourable to employees as ESA holiday provisions) might be found to provide a greater benefit in relation to holidays than the ESA. In that case, the agreement's holiday provisions would apply rather than the ESA holiday provisions, so the employees would not be entitled to the Family Day holiday.

Does Family Day apply to federal employees?

Family Day was made a public holiday under the provincial Employment Standards Act, 2000 (ESA), and a holiday under the provincial Retail Business Holidays Act (RBHA). Provincial law does not apply to employees of federally-regulated businesses like banks, telecommunications companies, railways and airlines nor to federal civil servants.

Will workers employed by the federal government get Family Day off?

Family Day is a public holiday for the majority of employees under Ontario jurisdiction. Federal government employees fall under federal jurisdiction. Accordingly, their public holidays are not governed by Ontario’s Employment Standards Act, 2000.

Federally-regulated employees with questions about Family Day should speak with their employer or union official.

What are the nine public holidays that Ontarians that are covered by the ESA holiday provisions entitled to?

Under the Employment Standards Act, 2000, eligible Ontarians are entitled to the following public holidays:

• New Year's Day
• Family Day
• Good Friday
• Victoria Day
• Canada Day
• Labour Day
• Thanksgiving Day
• Christmas Day
• Boxing Day (December 26)

The public holiday provisions in the ESA are a minimum requirement only. In some cases, an employee's employment contract or collective agreement might provide for other holidays, such as Civic Holiday, Easter Monday or Remembrance Day. However, these days are not public holidays under the ESA.