This guest post is one in a series providing practical, easy-to-understand legal information from CLEO (Community Legal Education Ontario/Éducation juridique communautaire Ontario).

Time off and public holiday pay: what are the rules?

In Ontario, the Employment Standards Act (ESA) protects the rights of workers. For many people, this includes the right to time off work with holiday pay on public holidays.

Do you know what your rights are, and what to do if your employer doesn't follow the rules?

Does the ESA apply?

The ESA has rules about public holidays. You may not be covered by the ESA if you work in certain fields, including some emergency services. In some jobs, you may only be covered by part of the ESA.

If you’re not sure if you’re covered by the ESA, you can use the Ministry of Labour's online tool to find out if the public holiday rules apply to you.

Getting time off work on a public holiday

If you work in Ontario and are covered by the ESA’s holiday pay rules, you have the right to not work on public holidays and get holiday pay. In Ontario, there are nine public holidays.

Holiday pay is calculated by:

• adding up your regular wages, plus vacation pay that is payable to you, for the four work weeks before the work week with the holiday in it
• dividing that total by 20.

If you are covered by the ESA holiday pay rules, your employer must give you holiday pay:

• whether you are a full-time or part-time employee
• no matter how long you have worked in your job
• whether or not the public holiday falls on a day you regularly work

Working on a public holiday

Depending on your job, you may have to work on public holidays. For example, you might have to work on public holidays if you work at:

• a hotel, motel or tourist resort
• a hospital or nursing home
• a business that stays open for 24 hours each day over a period of seven days.

Even if you are not required to work, you can agree to work on a public holiday.

Getting paid for working on a public holiday

There are two ways to get paid for working on a public holiday:

    1. You can get holiday pay (see definition above) plus premium pay. If you get premium pay, you will get 1 1/2 times your regular rate of pay. This is often called "time and a half".

    2. You can get regular pay and another day off with holiday pay. The employer has to give you the other day off within three months of the holiday. Or, you can agree in writing to take the day off within 12 months of the holiday.

If you have to work on the holiday because of the kind of job you have, the employer decides which of the two options to choose.

But, if you agree in writing to work on a holiday, you can choose which option you want.

The "last and first" rule

In order to get holiday pay, you must follow the "last and first" rule.

This rule says that unless you couldn't work for a reason beyond your control, you have to work:

    • your last scheduled work day before the holiday, and
    • your first scheduled work day after the holiday.

For example, being sick or injured might be a reason beyond your control.

An employer can ask you for proof of why you missed work, such as a doctor's note.

If you work on the holiday but do not meet the "last and first" rule, you will only get premium pay.

You can figure out your public holiday pay using the Ministry of Labour's Public Holiday Pay Calculator.

Keeping track of hours worked

It's a good idea for you to keep your own records of the hours you work.

By comparing your records with your pay stubs, you can see if you're getting paid what you're owed.

Getting wages you are owed

If you don't get the pay you’re owed, you may be able to get the money by making a claim with the Ministry of Labour.

Most people don't make claims against an employer that they're still working for. This is because the laws to protect workers don't stop employers from firing their workers. If you are fired, it's up to you to take action against the employer to get the money you are owed.

Getting legal help

The ESA says that employers can't punish workers for asking about their rights or acting on their rights. If this happens to you, there may be steps you can'take.

If you have questions or need help to deal with a problem, you can read more in CLEO's Where can I get help and advice about my rights as a worker?

Who is CLEO?

CLEO (Community Legal Education Ontario/Éducation juridique communautaire Ontario) is a non-profit organization that provides accurate and easy-to-understand legal information for people in Ontario. CLEO is funded by Legal Aid Ontario, the Department of Justice Canada and the Law Foundation of Ontario.

This blog post gives general legal information. It is not a substitute for getting legal advice about a particular situation.

Additional Resources at Toronto Public Library

Legal resources are found on the second floor, Humanities and Social Sciences Department, Toronto Reference Library. Please ask for materials at the Information Desk, 2nd floor.