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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 (up 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.

Job posting requirements

On a date to be set by proclamation of the Lieutenant Governor, amendments will come into force that establish new requirements for employers related to publicly advertised job postings.

Temporary help agency and recruiter licensing

Beginning on July 1, 2024 under the Employment Standards Act, 2000 (ESA):

  • Temporary help agencies are required to hold a licence to operate.
  • Recruiters are required to hold a licence to act as a recruiter.
    • Employers, prospective employers and other recruiters are prohibited from knowingly engaging or using the services of any recruiter that does not hold a licence.

Where applications are made before July 1, 2024 and a decision is pending, there is a transitional rule that will apply.

On April 29, 2024, O. Reg. 99/23 – Licensing Temporary Help Agencies and Recruiters was amended. The changes include:

  • Adding a surety bond as a new acceptable form of security for all applicants,
  • exempting certain recruiters from the security requirement under specified conditions,
  • changing the application fee and security requirements for entities applying both for a temporary help agency and a recruiter licence.

The ministry’s licensing webpage has been updated to reflect these changes. Please visit that webpage for details.

A new chapter describing the temporary help agency and recruiter licensing system in more detail will be posted soon.