It’s that time of year again. Family Day, which is the first new public holiday in Ontario since Boxing Day was added back in 1989, falls on Monday February 21st this year.
If you are in need of a little refresher on the basics of public or statutory holidays, you can access an article on our website entitled Public Holidays – The Basics. The intent of this article is not to discuss the law relating to holidays in general, but instead address briefly one issue that comes up frequently in relation to Family Day. That is, whether it is necessary for employers to give employees the day off if they already give extra holidays.
The answer is: maybe not. The requirement to provide public holidays for provincially regulated employees is set out in the Employment Standards Act (the “ESA”). The ESA provides minimum standards, and an employer can only avoid these obligations by providing a greater right or benefit with respect to a particular standard or provision. So an employer can arguably avoid the obligation to give its employees Family Day if it gives a greater benefit in terms of holidays. So, for example, if an employer gives its employees 10 paid holidays a year – which is greater than the 9 public holidays the ESA now dictates – the employer may not be obliged to give Family Day. But you have to be careful to look at the “entire public holiday package” – in terms of holiday pay and time off of work etc. – to determine if the employer has, in fact, given a greater right or benefit. It will not be sufficient to avoid the ESA standards if you give a “comparable benefit”; it has to be a greater benefit.
Like many things in the ESA, rights and obligations with respect to public holidays are not terribly intuitive or obvious. We recommended that you get some advice before you decide not to give your employees Family Day.
David Spears is an associate at BrazeauSeller.LLP. His practice focuses on employment issues. David can be reached at dspears@brazeauseller.com or 613-237-4000 ext. 207.
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