Canadians across the country will have their patriotism on full display next week celebrating the nation’s 158th birthday, but you may be wondering if your employer can ask you to mark the statutory holiday on Monday instead of Tuesday?
Those with a five-day work week job might argue having the Monday off means more time to relax over the weekend, but is an employer allowed to change the date of your entitled statutory holiday?
Here’s what you need to know.
Can my employer give me the Monday off instead of Tuesday for Canada Day?
Employers in Ontario can schedule their employees to work on Canada Day but in most cases, employees must agree to it and are required to know ahead of time, said Teilen Celentano, an Ontario employment lawyer and associate at Samfiru Tumarkin LLP.
An employer can give their employees the Monday off instead of Tuesday for the upcoming Canada Day, however, Celentano said this needs to be agreed upon and the possibility of working on stat holidays should be something agreed to in their initial contract during hiring.
There are some jobs in which employers have the right to make somebody work, however, this is often communicated before the stat day.
“The vast majority of employees in Ontario have the right not to work on public holidays,” Celentano said, but the exception to this rule is those who work in specified industries like hospitals, hotels, tourism and restaurants.
“The legislatures recognize that for those specific industries, there’s a requirement to work,” he said. “We need doctors, nurses, orderlies and security guards working at hospitals on Canada Day of all days.”
Employees in Ontario working in these types of frontline jobs can be scheduled to work on a statutory holiday without their agreement, but this only applies if the holiday falls on a day during the employee’s typical work week and if the person is not on vacation, according to the Ontario guidelines on public holidays.
Can an employee say no to working on Canada Day?
For employees who don’t fall in the certain industries Celentano mentioned, they have the right not to work on Canada Day if they haven’t agreed to it with their employer and if it isn’t stated in their contract, the lawyer said.
Celentano added that under the Employment Standards Act, there are prohibitions on employers retaliating if an employee exercises this right under the act.
“So what’s the right? It’s the right to not work that day. And if your employer then retaliated against you, whether by terminating you or by giving you less shifts … Not only could those actions be potential grounds for severance pay, but also because they’re retaliating against you, there could be additional damages that flow,” he said.
What is the benefit of working on a public holiday?
Those who don’t work on Canada Day are expected to get the day away from work but also receive statutory pay for the holiday.
“If you’re a salaried employee working Monday to Friday, 9 to 5, your public holiday pay— the way the law was written— it’s equal to one day’s pay,” said Celentano. “What you get on that public holiday is that you get the day off, but you still get paid.”
But for employees scheduled to work on Canada Day, there is also a benefit.
Take a substitute holiday or lieu day at a later date for which you are paid stat payment. And also receive your regular pay for the shift/hours you worked or choose to not take a day off at a later date and be paid stat payment for the Canada Day but also get paid a premium pay for each hour (known as time and a half).
Both options of pay are available for salaried and hourly paid employees in Ontario, Celentano said.
A substitute holiday, or paid lieu day, is defined by the province as “another working day off work that is designated to replace a public holiday.” Substitute holidays are meant to replace the stat holiday and so employees are entitled to be paid holiday pay which is calculated by looking at the regular pay an employee earned over the last four weeks before the week of the stat holiday, and dividing this by 20.
This also adds the vacation pay payable to the employee during this four week period prior to the statutory holiday, if applicable.
Employees who take their substitute day off at a later date, must take it no later than three months after the statutory holiday that was worked. The province says this may be delayed past the three months and up to 12 months after the statutory holiday, only if the employee has agreed and provided their employer a notice in writing or electronically.
“If an employee receives a substitute holiday, the employer must provide the employee with a written statement that sets out the public holiday that is being substituted, the date of the substitute holiday, and the date that the statement was given to the employee. This statement must be provided to the employee before the public holiday,” the Ontario website reads.
If an employee works on Canada Day and chooses the other payment option other than receiving paid time off at another date, they will receive statutory holiday pay for working the Canada day but also receive a premium payment for each hour worked on the holiday. This is typically what is called “time and a half” and this means the employee will receive their pay for the hours worked on the stat holiday and in addition, will receive 1.5 times their regular hourly rate for each hour worked on the holiday.
Who is entitled to statutory holidays in Ontario?
There are nine public holidays in Ontario:
- New Year’s Day
- Family Day
- Good Friday
- Victoria Day
- Canada Day
- Labour Day
- Thanksgiving Day
- Christmas Day
- Boxing Day (Dec. 26)
Civic holiday also known as Simcoe Day in August is not a statutory holiday in Ontario though many employers treat it as one, the same goes for Easter Monday.
Most employees in Ontario are entitled to statutory holiday pay however there is a “last and first rule” which explains that you have to work your last regularly scheduled shift before the public holiday, and also work the first regularly scheduled day of work after the holiday to be entitled to statutory pay, Celentano said.
There are exceptions to this as an employee may have a reasonable cause to not work the day right before or after Canada Day, such as when taking preplanned vacation.
You also don’t receive statutory pay if you were scheduled to work on the holiday but fail to work the entire shift of the holiday as agreed with your employer.
