Starting on February 18, 2008, Ontario will observe Family Day on the third Monday in February. While most workers welcome the addition of the ninth provincial statutory holiday, there is no guarantee that all of them will actually get a day off. For example, members of the Toronto Police Service were recently advised that, for them, Family Day would be a “regular work day.”
The reason for the inconsistency is found in Ontario’s Employment Standards Act, 2000 (ESA). While the ESA sets minimum standards for matters such as paid holidays, subsection 5(2) of the legislation allows employers to contract out of some of those minimum standards if they have a collective agreement, employment contract or policy that provides benefits in excess of the statutory minimums.
For example, many employers provide “floating” or personal days off in addition to statutory holidays. Those who provide paid holidays in excess of the nine paid holidays required by the ESA may be able to reduce the number of floating or personal days to offset Family Day. Such is the case with the Toronto Police, whose collective agreement provides 11 paid holidays. However, the possibility of such an offset hinges on the wording of the applicable agreement, contract or policy. In addition, there are a range of conflicting arbitration decisions regarding whether floating days off can be treated the same as statutory holidays.
How Are Employers Responding?
In an effort to gauge how employers are planning to treat Ontario’s new Family Day, Watson Wyatt conducted a survey of 33 organizations with over 140,000 active employees. Only 5 respondents indicated that they had not yet reached a decision regarding how to administer the new holiday. For the remaining respondents, the survey revealed that:
22 respondents (79%) will add Family Day as a new holiday under their holiday/vacation policies, but only for employees in Ontario;
2 respondents (7%) will reduce the number of personal or float days they currently provide in order to offset the new holiday; and
3 respondents (11%) will not change their holiday/vacation policies as they already provided for an unofficial Family Day in their collective agreements.
While it seems that most employers are adding Family Day as an additional paid holiday, some are reducing the number of floating holidays instead.
As February 18 is fast approaching, employers need to review their existing vacation/holiday policies to determine their obligations regarding Family Day. Employers who feel their policies enable them to reduce existing float days or other paid time off to accommodate the holiday should confirm their decision with legal counsel.
Regardless of the wording of the relevant agreement/contract/policy, employers should consider the impact of their decision on employee morale. For employers with operations outside Ontario, consideration should also be given to the impact on any national vacation policies.
Once confirmed, employers should ensure that their decision, and the reason for it, is clearly communicated to employees.
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