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August 8, 2018


Just a Phone Call Away – Changes Coming to Minimum Pay for On-Call Work


Unpredictable workflow can make scheduling a challenge. One common tool employers use to address this challenge is on-call staff: an employee remains available to be called in to work and must work if called.

The concept of on-call work is not itself problematic. Many jobs lend themselves to an on-call arrangement. Electricians, plumbers, IT professionals, doctors, and nurses are just a few examples.

However, while holding oneself on standby may not be particularly onerous it is, as the Supreme Court of Canada recently noted "a period of time during which the employer exercises a degree of control over the movements and activities of [an employee]. This exercise of control benefits the employer, who might otherwise have to employ [other employees] to work [after hours] to ensure a timely response to urgent [matters]". To address this, Bill 148 will amend the Ontario Employment Standards Act, 2000 ("ESA") to require compensation for an on-call employee even if the employee is not called in to work.

Under the Bill 148 amendments an on-call employee will be entitled to a minimum of three hours of pay at the employee’s regular rate even if the employee isn’t called to work.

At present, the ESA does not require an employer to compensate an employee for time spent on-call unless that employee is called to work. However, where an employee regularly works more than three hours but is called in and works fewer than three hours the employee is entitled to a minimum of three hours of pay at minimum of three hours of pay at minimum wage or the employee’s regular wage, whichever is greater (the "three hour rule").

On January 1, 2019, the law will change bringing with it the potential to dramatically increase the cost of on-call work.

As of January 1, 2019, an employee will have the right to refuse a shift (or on-call period) where not previously scheduled and where the request is made fewer than 96 hours before the proposed start time. An employee will also be entitled to three hours of pay at the regular rate if an employee’s entire scheduled day of work (or scheduled on-call period) is cancelled within 48 hours of its intended start.

Under the Bill 148 amendments an on-call employee will be entitled to a minimum of three hours of pay at the employee’s regular rate even if the employee isn’t called to work. That is, where an employee is on-call and is not required to work, or is called in but works for fewer than three hours despite being available to work longer, the employee is entitled to at least three hours of pay. This revised three hour rule will apply once in every 24-hour period the employee is on call.

In addition, as of January 1, 2019, an employee will have the right to refuse a shift (or on-call period) where not previously scheduled and where the request is made fewer than 96 hours before the proposed start time. An employee will also be entitled to three hours of pay at the regular rate if an employee’s entire scheduled day of work (or scheduled on-call period) is cancelled within 48 hours of its intended start.

Exemptions

These laws will not apply as follows:

  • Where the employer is unable to provide work for an employee due to an extraordinary cause beyond the employer’s control that results in a work stoppage (fire, storm, power failure, etc.), an employee will not be entitled to three hours’ pay where the employee works less than three hours, or where the employee has the day of work (or on-call period) cancelled with less than 48 hours’ notice.
  • To an on-call shift where an employee is on-call to ensure the continued delivery of an essential public service and is not called into work.
  • To a cancelled day of work (or on-call period) shift where an employee is on-call to ensure the continued delivery of an essential public service and is not called into work.
  • To a cancelled day of work (or on-call period) where the nature of the work is weather-dependent and the employer cannot provide the work for weather-related reasons. Note: It remains to be seen whether this exemption will be applied liberally to an employer whose business is only indirectly impacted by weather (for example, a warehousing operation where the product does not arrive due to a storm).
  • In addition, an employee will have no right to refuse to work or be on-call where the work deals with an emergency situation, remedies or reduces a threat to public safety, or is necessary to ensure the continued delivery of an essential public service (regardless of who delivers those services). Finally, Bill 148 recognizes collective agreement provisions may conflict with the scheduling provisions under the new legislation. Accordingly, any provision of a collective agreement in force as of January 1, 2019 that conflicts with the on-call pay entitlement, the right to refuse a shift or the right to cancel a scheduled day of work (or on call period), is grandfathered to the earlier of the expiry of the collective agreement or January 1, 2020. After January 1, 2020, all collective agreements in Ontario must comply with the requirements under Bill 148.

  • It remains to be seen whether Ontario’s new provincial government will seek to amend or repeal these scheduling changes. No mention was made during the election campaign, although rumours now swirl.
     

Tips for employers

Adapting to the scheduling changes under Bill 148 will require an honest look at your organization’s current practices and some strategic thinking about your operational needs. Ask yourself:

Is the work truly "on-call" or could it be scheduled inside regular business hours?

How far in advance do you reasonably know about your organization’s scheduling needs?

How frequently is an on-call employee actually called in to work?

When an employee is called in, does he/she work for at least three hours?

If you transition from on-call to scheduled shifts and the work volume is lower than anticipated, are there useful tasks an employee can do for at least three hours?

Would a voluntary call-in list work for your organization? In that case, an employee would not be required to hold him or herself available for work. If the employee is called and is not available to work, the employer would simply move to the next employee on the voluntary list.

It remains to be seen whether Ontario’s new provincial government will seek to amend or repeal these scheduling changes. No mention was made during the election campaign, although rumours now swirl. Unless and until we hear definitively, now is the time to begin preparing for the new scheduling laws.

 
 
 
 

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