Paid day off for working a holiday

Supervisors who must be available on a holiday but work from home

Stuart Rudner
Question: We require supervisors to be available 24 hours a day. On a statutory holiday, they stay home and only respond to phone calls. We pay them holiday pay but don’t give a day off in lieu. Are we obligated to provide an additional day off?

Answer: In some industries, trying to comply with the rules regarding statutory holidays can be a nightmare. Not every business can simply shut down. Emergency services may be needed or it simply may not be possible to stop production. That is why the legislation does allow for some flexibility.

Statutory holidays are regulated by employment standards legislation in each jurisdiction. Although the concepts are similar, the details and specific holidays vary. While the default is employees are entitled to get a paid day off on the statutory holiday, the laws of each jurisdiction provide other options. Every jurisdiction sets out a list of exempted categories of workers who do not necessarily get the day off with pay. Ontario’s Employment Standards Act specifies hospital workers, hospitality and tourism workers and those working for a “continuous operation” as those which an employer can require to work a statutory holiday. They may be entitled to another day off in lieu, premium pay or something else to compensate them for working on a public holiday.

In addition to the exemptions, some jurisdictions allow employees to agree they will work on statutory holidays in exchange for another paid day off. In Ontario, the legislation stipulates if such an agreement is made, the employee would get another paid day off and premium pay for working the holiday.

In some provinces, managers and supervisors are exempted from many of the employment standards rules, though in Ontario they are entitled to paid statutory holidays. Typically, individuals will be considered to be managers or supervisors if their work is primarily of that nature, even if they perform non-managerial or non-supervisory tasks from time to time. Individuals who have a senior role in the organization, even if they do not technically supervise or manage anyone, are also included.

There’s no specific clause for someone who is only partially working. They are either working, and entitled to be compensated, or they aren’t.

Stuart Rudner is a partner who practices commercial litigation and employment law with Miller Thomson LLP’s Toronto office. He can be reached at (416) 595-8672.

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