July 10, 2018

Personal Emergency Leave for Construction Employees: New Guidance from the OLRB

In a new decision of significant interest to construction industry employers in Ontario, the Ontario Labour Relations Board has provided its interpretation of construction employees’ entitlement to personal emergency leave under the Employment Standards Act, 2000 (the “ESA”) and its regulations.
Most employees in Ontario with one or more week of service are entitled to two (2) days of paid personal emergency leave (“PEL”) as a result of amendments to the ESA made by Bill 148, the Fair Workplaces, Better Jobs Act.  However, as we previously reported in, Regulations Clarify Application of Bill 148 Changes to Construction Employees, O. Reg. 526/17: Exemptions, Special Rules and Establishment of Minimum Wage, which amended O. Reg. 285/01,  modifies the application of the paid personal emergency leave requirement to construction employees.  A construction employee who receives 0.8% or more of his/her hourly wages for personal emergency pay is not entitled to the two (2) paid personal emergency leave days under the ESA, but will be entitled to ten (10) unpaid leave days in each calendar year.
In IBEW Electrical Power Council Of Ontario v Electrical Power Systems Construction Association, two unions brought grievances against EPSCA after it issued a notice requiring its member employers to pay out an additional 0.8% of employees’ base hourly rate on all hours worked (excluding overtime hours) commencing May 1, 2018 as “personal emergency pay”, pursuant to the construction industry exemption in O. Reg. 285/01, as amended. EPSCA took the position that, by doing so, its member contractors would not have to also provide their employees with two (2) paid personal emergency leave days under the ESA.
The OLRB made the following important findings with respect to paid personal emergency leave in the construction industry:

• No need for Union Agreement – EPSCA did not require agreement from the unions to implement the payment of an additional 0.8% as personal emergency pay. It was permitted to unilaterally select one of the two methods prescribed by the legislature for complying with its new statutory obligation to provide paid personal emergency leave.
• Calculation of Payment – In order to satisfy the ESA construction exemption the 0.8% payment was required to include holiday pay, vacation pay, overtime, and other premiums, but did not include employer contributions to union benefits funds.
• Retroactivity of Payment – The 0.8% payment was required to be retroactive to January 1, 2018 when the paid personal emergency leave provisions of the ESA, and the construction exemption in O. Reg 285/01, as amended, came into force.
• No Overlapping Entitlement – Construction employees are not entitled to both 0.8% as personal emergency pay and two (2) paid personal emergency leave days. Accordingly, if a construction employee had already claimed one (1) paid personal emergency leave day in 2018, an EPSCA employer could elect to either pay the employee an additional 0.8% as emergency leave pay retroactive to January 1, 2018 OR grant the employee a second paid personal emergency leave day upon request.

This decision provides much-needed guidance on how construction employers can properly engage the construction exemption from the new statutory obligation to provide paid personal emergency leave.
Employers with questions or concerns about the effect of this decision on their current practices are encouraged to contact a Mathews Dinsdale lawyer .