ESA Guide on Holiday Time Off and Pay

Overview

Do you know when you get time off? There are 9 Ontario public holidays:

1. New Year’s Day (January 1, 2024)
2. Family Day (February 19, 2024)
3. Good Friday (March 29, 2024)
4. Victoria Day (May 20, 2024)
5. Canada Day (July 1, 2024)
6. Labour Day (September 2, 2024)
7. Thanksgiving Day (October 14, 2024)
8. Christmas Day (December 25, 2024)
9. Boxing Day (December 26, 2024)

Most qualifying employees are entitled to take off work the dates listed above and be paid public holiday pay as per the Employment Standards Act (ESA).

Employers in Ontario have the choice to provide employees the Easter Monday (April 1, 2024) Civic Holiday (August 5, 2024), or Remembrance Day (November 11, 2024) as time off despite it not being a statutory holiday.

The employee, could alternatively, agree electronically or in writing to work on the holiday and be paid:

• Public holiday pay, plus premium pay for all hours worked on that public holiday but not receive another day off work (referred to as a “substitute” holiday);

OR

• Be paid their normal wages for all hours worked on that public holiday and receive a substitute holiday that is subject to public holiday pay.

Who is required to work on a public holiday?

If the public holiday falls on a scheduled work day for the employee and it is not during their vacation time, they may be expected to work on that public holiday if their job is at:

• A hotel, motel or tourist resort
• A restaurant or tavern
• A hospital
• A continuous operation workplace (the workplace does not shut down more than once a week e.g., alarm monitoring companies)

Scenarios:

Scenario A: If an employee is required to work, they are entitled to:

• their normal rate for the hours worked on that public holiday in addition to a substitute day off work with public holiday pay;
  OR
• public holiday pay plus premium pay for each hour worked.

The employer can choose which option will apply to the employee.

Scenario B: If the employee is required to work on that public holiday per their work schedule but does not work, with reasonable cause, they are entitled to:

• a substitute holiday with public holiday pay;
  OR
• public holiday pay for the holiday.

The employer can choose which option will apply to the employee.

Scenario C: If the employee is required to work on that public holiday per their work schedule but does not work, with reasonable cause, some of their hours, they are entitled to:

• their normal rate for each hour worked on the holiday plus a substitute holiday with public holiday pay;
  or
• public holiday pay for the holiday plus premium pay for each hour worked.

The employer can choose which option will apply to the employee.

Scenario D: If the employee is required to work on that public holiday per their work schedule but who does not work, without reasonable cause, all or partial hours they are entitled to:

• premium pay for each hour worked on the holiday (if any)

In this scenario, the employee is not entitled to public holiday pay or a substitute holiday.

Which employees are not covered by the public holiday provisions of the ESA?

Please note that special rules and exemptions exist for the following job categories:

• EMS, healthcare and health professionals
• Manufacturing, construction and mining
• Hospitality services and sales
• Transportation
• Agriculture, growing, breeding, keeping and fishing
• Household, landscaping and residential building services
• Government employees and professionals
• Other industries and jobs (i.e., student employees, homeworkers, embalmers and funeral directors, continuous operation employees, temporary help agency employees, film and television industry, live performances, trade shows and conventions)

To find out information about these categories and whether you get the time off, click here.

How do you calculate public holiday pay?

The amount of public holiday pay an employee is entitled to is:

The sum of normal wages earned by the employee during the 4 weeks leading up to the week the public holiday falls on plus the vacation pay payable to the employee for those 4 weeks before the week with the public holiday, divided by 20.

Visit the Public Holiday Pay Calculator to see how much to pay for public holidays.

What is premium pay?

Premium pay describes an employee’s entitlement to 1.5 times their normal hourly rate for each hour they work on a public holiday.

Example: Cathy makes $21 an hour. She is scheduled for an 8-hour shift on Good Friday. If it were not a public holiday, Cathy would earn $168 from that shift. However, considering Good Friday is a statutory holiday, Cathy will instead earn $252.

Normal wage rate: $21/hour

Premium pay breakdown: $21/hour x 1.5 = $31.50/hour

Total amount earned during the public holiday: $31.50 x 8 hours = $252

How do you qualify for public holiday entitlements?

The employee does not need to be full-time to qualify for public holiday entitlements. A qualified employee can also be part time, permanent or on term contract. It also does not depend on how long they have been doing the job, or how many days the employee worked prior to the public holiday to be able to take this time off.

Employees will generally qualify for public holiday pay if:

• 1. They fulfill the “Last and First Rule”,

OR

• 2. They work their entire agreed upon/required shift on that public holiday.

Last and First Rule: The employee is required to work on their last regularly scheduled work day prior to the public holiday, as well as their first regularly scheduled work day following the public holiday.

Note: If the employee fails to qualify for public holiday entitlements, they could still be entitled to receive premium pay for each hour worked on that holiday.

What happens if the public holiday falls on a day the employee is not scheduled to work or during their vacation?

If the public holiday falls on a day the employee would not usually work or it occurs during their vacation time, the employee is entitled to:

• public holiday pay plus a substitute holiday;
  OR
• public holiday pay for that public holiday but no substitute holiday (only if the employee agrees to this in writing)

What is a substitute holiday?

A substitute holiday is another working day that the employee can take time off to replace the public holiday. This time off needs to take place within 3 months after the public holiday. This can be extended to within 12 months, if the employee agrees.

If a substitute holiday is permitted, the employer is responsible for providing the employee a written statement that includes:

• the date the employee is to receive the statement
• what day will be considered the substitute holiday
• a clear statement that you are substituting a public holiday
• which public holiday is being substituted (i.e., Thanksgiving)

Remember: Employees are entitled to receive public holiday pay for substitute holidays.

What are the rules for student employees?

Student employees are generally entitled to the following:

• A student minimum wage rate of $14.60 (if under the age of 18) and work under 28 hours/week during the school year or during a school break
• A regular minimum wage rate of $15.50 (if over the age of 18), unless their job is not covered by minimum wage
• Students are required to be paid for 3 hours of work at a minimum (at a regular hourly rate) if they normally work more than that, but for reasons outside the employer’s control, they are sent home before completing 3 hours of work.

There are additional rules that apply to students who work in the following areas:

• At a children’s camp
• Charity run recreational programs
• Instructing or supervising children

In these special cases, students are not entitled to:

• Minimum wage
• The 3-hour rule mentioned above
• Overtime pay
• Public holidays with public holiday pay

Sources:

Ontario.ca, updated September 26, 2022. Public Holidays. https://www.ontario.ca/document/your-guide-employment-standards-act-0/public-holidays

Ontario.ca, updated May 31, 2022. Other Industries and Jobs. https://www.ontario.ca/document/industries-and-jobs-exemptions-or-special-rules/other-industries-and-jobs#section-0

Ontario.ca, Updated August 3, 2022. Young Workers’ Rights. https://www.ontario.ca/document/your-guide-employment-standards-act-0/young-workers-rights

A special thank you to Maria Kavanagh and Yasmine Haik for their help and contributions to this article!

The content of this article is written for general information purposes only and does not constitute specific legal advice. This article should not be used as a substitute for competent legal advice from a licensed lawyer. Please contact us at 416-600-9469 if you’d like to speak to an Emerge Law lawyer.