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Placement of a child leave (adoption or surrogacy)

A new section was established under the ESA that provides an employee, who has been employed by an employer for at least 13 weeks, with an entitlement to an unpaid leave of absence because of either:

  • the placement of a child into the employee’s custody, care and control for the first time for the purposes of adoption
  • the arrival of a child into the employee’s custody, care and control for the first time where the person who gave birth to the child is a surrogate

The qualifying employee may start the leave up to 6 weeks before the expected date of placement, with a total entitlement of 16 weeks in respect of a child.

Employers are required to retain, or arrange for some other person to retain, specified records that relate to an employee taking placement of a child leave for 3 years after the day on which the leave expired.

These changes are not yet in effect. They will come into effect on a day to be proclaimed by the Lieutenant Governor.

Long-term illness leave

A new long-term illness leave was established under the ESA, which provides an employee who has been employed by an employer for at least 13 consecutive weeks with an entitlement to an unpaid leave of absence if both:

  • the employee will not be performing the duties of their position because of a serious medical condition
  • a qualified health practitioner issues a certificate stating that the employee has a serious medical condition and setting out the period where the employee will not be working because of the serious medical condition.

The maximum entitlement to long-term illness leave is 27 weeks in a 52-week period.

Employers are required to retain, or arrange for some other person to retain, specified records that relate to an employee taking long-term illness leave for 3 years after the day on which the leave expired.

These changes are not yet in force. They will come into force on June 19, 2025.

New rules about employment information

Beginning on July 1, 2025, certain employers will be required to provide each new employee the following information, in writing:

  • legal name of the employer, as well as any operating or business name if different from the legal name
  • contact information for the employer, including address, telephone number, and one or more contact names
  • a general description of where it is anticipated that the employee will initially work
  • the employee’s starting hourly or other wage rate, or commission, as applicable
  • the pay period and pay day
  • a general description of the employee’s initial anticipated hours of work.

This information must be provided to the employee before the employee’s first day of work or, if that is not practicable, then as soon after that date as is reasonably possible.

The requirement will not apply:

  • to an employer that employs less than 25 employees on the employee’s first day of work
  • with respect to assignment employees.

Rules and exemptions for job postings

On January 1, 2026, new requirements and a new regulation (O. Reg. 476/24) under the ESA will come into effect for employers who advertise publicly advertised job postings, including the following requirements.

The requirements with respect to publicly advertised job postings will not apply to employers that employ less than 25 employees on the day the posting is posted.

Requirement to include expected compensation

Employers will have to include in a publicly advertised job posting information about the expected compensation or range of expected compensation for the position. In the case of a range, the range is limited to an amount equivalent to $50,000 per year or less.

This requirement does not apply if the expected compensation is equivalent to more than $200,000 per year, or the range of the expected compensation ends at an amount equivalent to more than $200,000 per year.

Requirement to disclose use of artificial intelligence

Employers will be required to disclose in a publicly advertised job posting the use of artificial intelligence during the hiring process.

Prohibition against including Canadian experience requirement

Employers will be prohibited from including in a publicly advertised job posting or any associated application form any requirements related to Canadian experience.

Requirement to disclose if a vacancy exists

Employers will be required to disclose in a publicly advertised job posting if the posting is for an existing vacancy or not.

Requirement to provide information to applicants interviewed

If an employer interviews an applicant for a publicly advertised job posting, they will be required to provide information to that applicant about whether a hiring decision has been made for that posting.

The information must be provided:

  • within 45 days after the date of the interview or, if the applicant is interviewed more than once, then within 45 days after the date of the last interview
  • in person, in writing or using technology.

O. Reg. 476/24 also defines the following key terms:

  • artificial intelligence
  • publicly advertised job posting
  • compensation
  • interview

Medical notes and sick leave

Under the Employment Standards Act, 2000 (ESA), employers can require an employee to provide evidence reasonable in the circumstances that they are entitled to sick leave under the ESA.

Effective October 28, 2024, employers cannot require employees to provide a certificate from a qualified health practitioner (a medical note). A “qualified health practitioner” is a person who is qualified to practise as a physician, registered nurse or psychologist under the laws of the jurisdiction in which care or treatment is provided to the employee.

ESA maximum fines

A prosecution may be commenced under Part III of the Provincial Offences Act where a person is believed to have committed an offence under the ESA. If convicted, an individual could be subject to a fine or a term of imprisonment or both.

As of October 28, 2024, the maximum fine for individuals convicted of contravening the ESA has increased to $100,000 (increased from $50,000).

Definition of employee

The Employment Standards Act (ESA) defines an employee to include a person who:

  • performs work for an employer for wages
  • supplies services to an employer for wages
  • receives training from an employer, if the skill they’re being trained on is a skill used by the employer’s employees
  • is a homeworker
  • was an employee

On March 21, 2024, the meaning of “training” was expanded to include work performed during a trial period. An employee now includes a person who performs work during a trial period for an employer, if the skills being assessed during the trial period are skills used by the employer’s employees or could be used by employees if there are no other employees. This means the hours worked during the trial period must be counted as work time. Learn more about what counts as work time.

Deductions from wages

The ESA prohibits employers from making deductions from wages when the employer had a cash shortage, lost property or had property stolen and a person other than the employee had access to the cash or property.

On March 21, 2024, the ESA was amended to confirm that this includes deductions from wages in “dine and dash”, “gas and dash” and other similar situations.

Payment of wages — direct deposit

The ESA requires employers to pay wages by cash, cheque or direct deposit. If the wages are paid by direct deposit, the account must be in the employee’s name and nobody other than the employee can have access to the account, unless the employee has authorized it.

Effective June 21, 2024, an additional requirement will be in place if the employer wants to pay wages by direct deposit: the account must be selected by the employee. This means the employee must decide which account to use and the employer cannot restrict an employee’s section by, for example, requiring the employee to use an account at a particular financial institution.

For payments that are to be made after June 20, 2024, an employee has the right to select the account where their wages are to be deposited. If an employer previously restricted an employee’s account selection — for example, by requiring them to use an account at a particular financial institution — it is the employer’s responsibility to confirm the employee’s selection of their desired account before they make the next payment after June 20, 2024. An employee can also notify their employer that they want their wages deposited to a different account and, when that happens, the employer must make the change.

Vacation pay agreements

The ESA allows an employer to pay vacation pay to an employee on every pay cheque as it accumulates or at any agreed-upon time, but only with the agreement of the employee. Learn more about when to pay vacation pay.

Effective June 21, 2024, the ESA is amended to clarify that the employee must make an agreement with the employer in order for the employer to be able to pay vacation pay on every pay cheque or at an agreed-upon time. This confirms that such agreements cannot be verbal and must be made in writing (including electronically), consistent with how the ministry enforces the ESA.

Tips or other gratuities — methods of payment

Beginning June 21, 2024, employers will be required to pay tips or other gratuities by either:

  • cash
  • cheque
  • direct deposit

If payment is by cash or cheque, the employee must be paid the tips or other gratuities at the workplace or at some other place agreed to electronically or in writing by the employee.

If payment is made by direct deposit, the account must be selected by the employee and be in the employee’s name. Nobody other than the employee can have access to the account, unless the employee has authorized it.

The requirement that the employee select the account means the employee must decide which account to use, and the employer cannot restrict an employee’s selection by, for example, requiring the employee to use an account at a particular financial institution.

For payments that are to be made after June 20, 2024, an employee has the right to select the account where their tips are to be deposited. If an employer previously restricted an employee’s account selection — for example, by requiring them to use an account at a particular financial institution — it is the employer’s responsibility to confirm the employee’s selection of their desired account before they make the next payment after June 20, 2024. An employee can also notify their employer that they want their tips deposited to a different account and, when that happens, the employer must make the change.

Tips sharing policy

The ESA allows employers, as well as directors and shareholders of an employer, to share in tips, if specified criteria are met.

Effective June 21, 2024, where an employer has a policy about the employer, director or shareholder of the employer, sharing in a tip pool, the employer will be required to post a copy of that policy in a clearly visible place in the workplace where it is likely to come to the attention of employees.

The requirement to post a policy does not require an employer to establish a policy. It applies if an employer has a written policy in place or if an employer has an established practice of sharing in a tip pool that is consistently applied (even if it’s not written down). If the employer has an unwritten but established, consistently-applied practice in place, the employer must put the policy in writing and post a copy of the policy.

The ESA does not specify the information that must appear in the policy, as long as the posted document is a true copy of the policy that is in place and clearly states that the employer or a director or shareholder of the employer shares in the tip pool.

Effective, June 21, 2024, employers will also be required to keep a copy of every tips sharing policy that is required to be posted for three years after the policy stops being in effect.