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Dealing with Ontario’s new overtime regulations • Do same-sex partners get parental leave?

Dealing with Ontario’s new overtime regulations

Question: What steps will an employer have to take with respect to employees working overtime in Ontario after Bill 63, the Act to amend the Employment Standards Act, 2000, with respect to hours and certain other matter, comes into effect?

Bill 63 reduces the maximum number of hours an employer can require its employees to work, without the consent of that employee, from 60 hours per week, as was established in the Employment Standards Act, 2000, to 48 hours per week. Employee protection, one of the goals of Bill 63, is achieved by ensuring an employee has a real say in how many extra hours she works each week.

When passed, this legislation will obligate employers to apply to the Director of Employment Standards at the Ministry of Labour for permission to have employees work more than 48 hours per week and to obtain written consent from the employee confirming her willingness to work overtime. Prior to obtaining the employee’s consent, the employer must provide the employee with the Ministry of Labour’s information sheet that sets out the rights of the employee, including the right to refuse to work more than 48 hours and the ability to end the agreement.

Employers may submit applications by fax, mail, in person or online beginning Oct. 1, 2004, enabling approval to be achieved prior to Jan. 1, 2005 — the date this legislation is scheduled to take effect. But despite an employer obtaining an employee’s consent to work overtime and the ministry’s approval of an employer’s application, the extra hours agreement may be revoked by either the employee by giving two weeks notice or the employer by giving reasonable notice.

Do same-sex partners get parental leave?

Question: Our organization has an employee in a same-sex relationship who has recently become a parent. Although she was not the party who gave birth to the child she is requesting a leave of equal time as her partner who actually had the baby. Granting such a leave is potentially devastating to our business. Must this leave of absence be granted?

Answer: This is a request for a parental leave (or childcare leave as it is called in some jurisdictions.) The parental leave exists in all jurisdictions in Canada. In Ontario, regardless of whether or not a party actually gives birth, s. 48(1) of the Employment Standards Act, 2000, states an employee who has been employed by her employer for at least 13 weeks and who is the parent of a child is entitled to a leave of absence without pay following the birth of the child or the coming of the child into the employee's custody, care and control for the first time.

The purpose of the parental leave is to permit new parents to adjust to their new familial situation and obligations. This adjustment phase exists despite the employee not actually being pregnant, necessitating the creation of a parental leave category as distinguished from a pregnancy leave.

The fact the employee is integral to the success of a business is irrelevant when determining the merit of a leave of absence. As long as the employee gives written notice to her employer at least two weeks before the leave is scheduled to begin, and actually begins the leave within 52 weeks of the birth of the child, the employee is entitled to return to work at the termination of the leave as long as the job remains available. The employer is obligated under the act to reinstate the employee to the position most recently held, if it still exists, or to a comparable one if it does not.

If a business endeavour will flounder due to an employee’s parental leave, the employee may choose to take a less extensive leave or even no leave at all. But this does not affect the statutory right of the employee to take a full parental leave and to be reinstated to her position following the leave.

Peter Israel is the head of Goodman and Carr LLP’s Human Resource Management Group. He can be reached at (416) 595-2323 or [email protected]. Address questions to [email protected].

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