by Brian Smeenk, formerly with McCarthy Tetrault
A new statutory holiday, Family Day, has been declared in the province of Ontario. It will be celebrated on February 18. In subsequent years, it will fall on the third Monday of each February.
Employers should begin considering how their organization will respond. In particular, employers should begin reviewing existing employment contracts and collective agreements to determine whether they will treat Family Day as an additional holiday for employees.
Many employers already provide employees with more contractual public holiday rights and benefits than required by the minimum employment standards laws of Ontario – the Employment Standards Act (ESA). For example, a number of employment contracts and collective agreements provide “floater days” in addition to the original eight statutory holidays.
Employers should be aware that under the ESA, if the provisions of an employment contract or collective agreement provide a “greater right or benefit” than those provided by the ESA for the same subject matter, the contractual provisions apply and the ESA doesn’t apply.
As a result, if you already provide “greater rights or benefits” with respect to public holidays, you may assert that there is no obligation to treat Family Day as an additional holiday even though it’s been added to the ESA. There is precedent in decided cases that support that position.
In determining whether Family Day should be treated as an additional holiday benefit, employers should conduct a detailed comparison of applicable contractual holiday provisions and the “public holiday” provisions of the ESA. Assess whether your existing policies provide a greater benefit than the ESA even with the addition of the new public holiday.
If you have questions about Family Day or require assistance in determining your organization’s statutory or contractual obligations regarding public holidays, please contact a member of the Labour and Employment Group at McCarthy Tétrault.
