Public Holidays

To Whom Does This Apply?

This document is based on information from the Ministry of Labour's Web site at http://www.labour.gov.on.ca/english/es/factsheets/fs_public.html (last updated July, 2006).

This Fact Sheet is provided for your information and convenience only.  It is not a legal document.  For further details, consult Employment Standards Act Publications.  For complete information, refer to the Employment Standards Act, 2000 and its regulations.

Before you read this document, please read the Ministry's General Information Fact Sheet and find out if the ESA applies to you.

Who qualifies?
Employees who qualify are entitled to take public holidays off work and be paid public holiday pay. Or they can agree in writing to work on the holiday, and will be paid either:

• public holiday pay plus a premium rate of pay for the hours worked on the public holiday ;
  or
• their regular rate for hours worked on the holiday, plus they will receive a substitute holiday with public holiday pay.

Most employees are eligible for these public holiday entitlements.

Who does not qualify?
Some employees may be required to work on a public holiday, either because:

• they work in jobs that are exempt from (i.e. not covered by) the public holiday part of the ESA ;
  or
• they work in businesses with special rules.

For more details about jobs and industries that aren't covered by the public holiday part of the ESA, or to which special rules apply, consult the chart in the "How are You Covered by the ESA?"  Fact Sheet at http://www.labour.gov.on.ca/english/es/factsheets/fs_covered.html. 

Summary

What are Ontario's public holidays?
Ontario has eight public holidays:

• New Year's Day
• Good Friday
• Victoria Day
• Canada Day
• Labour Day
• Thanksgiving Day
• Christmas Day
• Boxing Day (December 26)

Some employers give their employees a holiday on Easter Sunday, Easter Monday, the first Monday in August, or Remembrance Day.  However, these days are not public holidays under the ESA.

How do employees qualify for public holiday entitlements?
Generally, employees qualify for public holiday entitlements unless they:

• fail without reasonable cause to work their entire shift on their regularly scheduled days of work before or after the public holiday (this is called the "Last and First Rule"); or
• fail without reasonable cause to work their entire shift on the public holiday if they agreed to or were required to work that day (please note that only some employees can be required to work on a public holiday--see What about employees who qualify for a public holiday but are required to work under special rules?).

Qualified employees can be full-time, part-time, permanent or on a limited-term contract.  They can also be students.  It doesn't matter how recently they were hired, or how many days they worked before the public holiday.

Note: most employees who don't meet either of the qualifying criteria are entitled to be paid premium pay for every hour they work on the holiday.

What is "reasonable cause"?
Employees are generally considered to have "reasonable cause" for missing work when something beyond their control prevents them from working.  Examples are illness, injury, medical emergencies, deaths or other emergencies (including emergencies related to family members). 

Employees are responsible for showing that they had a reasonable cause for staying away from work.  If they can do so, they still qualify for public holiday entitlements.

What is the "Last and First" Rule, and how does it work?
The "Last and First" Rule is one of the criteria that qualifies employees for public holiday entitlements.  The rule is that employees must:

• work all of their regularly scheduled days of work before and after the public holiday (unless they can show reasonable cause for failing to work).

However, the "regularly scheduled days of work before and after the public holiday" don't have to be the days right before and right after the holiday.

For example, if an employee isn't scheduled to work the day right before or after the holiday, as long as he or she works all of the last regularly scheduled shift before the holiday and all of the first one after it--or provides reasonable cause for not working either of those days-he or she meets this criterion.

How much public holiday pay are qualified employees entitled to?
Here's how to calculate the amount of public holiday pay a qualified employee is entitled to:

• add all of the regular wages and all of the vacation pay the employee earned in the four work weeks ending just before the work week with the public holiday;
• divide this sum by 20.

If the employee has earned a substitute holiday with public holiday pay, this calculation is done for the four work weeks before the work week in which the substitute day falls.

Understanding the public holiday rules: key definitions

Premium pay is 1½ times the employee's regular rate of pay.  Employees who are entitled to receive premium pay for work on a public holiday must be paid 1½ times their regular rate of pay for each hour they work.

Public holiday pay is all of an employee's regular wages, plus all of the vacation pay earned in the four weeks ending just before the work week with the public holiday, divided by 20.  For important details about calculating public holiday pay, please see "How much public holiday pay are qualified employees entitled to?".  If the employee has earned a substitute holiday with public holiday pay, the calculation is based on the four-week period before the substitute day off.

Regular rate means an employee's rate of pay for each non-overtime hour of work in his or her work week.

Regular wages doesn't include any overtime or premium pay owed to an employee.

A substitute holiday is another working day off work designated to replace a public holiday.  Employees are entitled to be paid public holiday pay for a substitute holiday.  A substitute day off must be scheduled for no later than three months after the public holiday for which it was earned--or, if the employee has agreed in writing, up to 12 months after the public holiday.

Vacation pay includes any vacation pay owed to an employee who takes a vacation in the four work weeks before the public holiday (or substitute holiday).  It also includes vacation pay owed to an employee who has agreed in writing to receive it either on each paycheque, or at any other time, if the payment is due during those four work weeks.

How to count the four-week period before a week with a public holiday
The "four work weeks ending just before the work week with the public holiday" aren't necessarily the four calendar work weeks immediately before the public holiday.  This four-week period is based on the employer's work week.

What if a public holiday falls on a day off or during an employee's vacation?
When a public holiday falls on a day that isn't ordinarily a working day for an employee, or during the employee's vacation, the employee is entitled to either:

• a substitute holiday off with public holiday pay (this must be scheduled for no more than three months after the public holiday or, if the employee has agreed in writing, up to 12 months after the public holiday); or
• public holiday pay for the public holiday, if the employee agrees in writing.  In this case, the employee isn't given a substitute day off.

However, if employees received little or no wages or vacation pay in the four weeks before the holiday, they will receive little or no public holiday pay.

What if an employee who qualifies for the day off agrees to work on a public holiday?
Most employees have a right to refuse to work on a public holiday, and to take the day off and get paid public holiday pay.  However, if an employee agrees in writing to work on the holiday, there are two options:

• the employee is entitled to regular wages for all hours worked on the public holiday plus another regular working day off with public holiday pay (this substitute day off must be scheduled for no later than three months after the public holiday or, if the employee has agreed in writing, up to 12 months after the public holiday); or
• if the employee agrees in writing, he or she is entitled to public holiday pay for the public holiday plus premium pay (1½ times the employee's regular rate) for all hours worked on the public holiday.  In this case, the employee isn't given a substitute day off.

What happens when an employee doesn't work on a public holiday after agreeing to do so?
If an employee has agreed in writing to work on a public holiday but does not--and doesn't show reasonable cause for not working--he or she has no right to public holiday pay or a substitute day off with pay.
 
However, if the employee can show reasonable cause for not working the public holiday, entitlements will depend on which of the two options below the employee chose in exchange for agreeing to work on the public holiday:

1. If the employee had agreed in writing to work on the public holiday for regular wages plus a substitute day off with public holiday pay he or she is entitled to a substitute day off work with public holiday pay (this must be scheduled for no later than three months after the holiday or, if the employee has agreed in writing, up to 12 months after the holiday); or
   
2. If the employee had agreed in writing to work on the public holiday for public holiday pay plus premium pay for each hour worked he or she is entitled to receive public holiday pay for the holiday.  However, the employee isn't entitled to be paid premium pay because no work was actually performed on the holiday.

What happens when an employee works only some of the hours agreed to on a public holiday?
If an employee has agreed in writing to work on the public holiday but works only some of the hours agreed upon-and doesn't show reasonable cause for not working--the employee is only entitled to receive premium pay for each hour worked on the holiday.  The employee has no right to public holiday pay or a substitute day off work.

However, if reasonable cause is demonstrated for only working some of the hours agreed to:

• the employee is entitled to his or her regular rate for all hours worked on the public holiday, plus a substitute day off work with public holiday pay (this must be scheduled for no later than three months after the holiday or, if the employee has agreed in writing, up to 12 months after the holiday); or
• if the employee had earlier agreed in writing to work on the public holiday for public holiday pay plus premium pay for each hour worked, he or she is entitled to be paid public holiday pay plus premium pay for every hour worked on the holiday.

What about employees who qualify for a public holiday but are required to work under special rules?
Employees who work in the following businesses may be required to work on public holidays:

• hotels, motels and tourist resorts;
• restaurants and taverns;
• hospitals and nursing homes; and
• continuous operations (operations or parts of operations that do not stop or close more than once a week, such as oil refineries or alarm monitoring companies).

However, the only time these employees can be required to work on a public holiday without their agreement is when the public holiday falls on a day they would normally work, and they are not on vacation.

If special rules apply to you, please see Employment Standards Act Publications for more information.

What if employment ends before a paid substitute holiday is taken?
Sometimes an employee's job comes to an end before the employee can take a substitute holiday with public holiday pay that he or she has earned.  In this case, the employer must pay the public holiday pay at the same time it pays the employee's final wages.

What if the employer does not follow the ESA?
If an employee thinks the employer is not complying with the ESA, he or she can call the Employment Standards Information Centre at 416-326-7160 or toll free at 1-800-531-5551 for more information about the ESA and how to file a complaint. Complaints are investigated by an employment standards officer who can, if necessary, make orders against an employer—including an order to comply with the ESA. The ministry has a number of other options to enforce the ESA, including requesting voluntary compliance, issuing an order to pay wages, an order to reinstate and/or compensate, a notice of contravention, or issuing a ticket or otherwise prosecuting the employer under the Provincial Offences Act.

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DISCLAIMER
Information contained in this section is of a general nature only and is not intended to constitute advice for any specific fact situation. For particular questions, the users are invited to contact their lawyer. For additional information, see contact(s) listed below.

Ontario Contact(s):
Employment Standards Information Centre
Ministry of Labour - MOL
Ontario 
Telephone: (416) 326-7160
Fax: (416) 314-8725
Toll-free (information): 1-800-531-5551
E-mail: webes@mol.gov.on.ca
Web site: http://www.gov.on.ca/LAB