Statutory Holiday Pay in Ontario: What You Are Owed

Public holiday pay is one of the most misunderstood parts of the Employment Standards Act, and one employers get wrong all the time. Whether you have the day off or work it, the ESA sets out exactly what you are owed, and it is often more than people realize. Here is how it actually works in Ontario.

What are the public holidays in Ontario?

There are nine public holidays recognized under the ESA:

• New Year's Day
• Family Day (third Monday in February)
• Good Friday
• Victoria Day
• Canada Day
• Labour Day
• Thanksgiving Day
• Christmas Day
• Boxing Day (December 26)

Note that some days people assume are statutory holidays are not public holidays under the ESA. The August Civic Holiday, Remembrance Day, and Easter Monday are not ESA public holidays, so there is no statutory public holiday pay entitlement for them, though your employer may still give them as paid days off by policy or contract.

How is public holiday pay calculated?

The ESA uses a specific formula. Your public holiday pay is the total of the regular wages and vacation pay payable to you in the four work weeks before the work week that contains the public holiday, divided by 20. This means part-time and variable-hours employees are still entitled to public holiday pay, calculated proportionally to what they actually earned in the preceding weeks, not just full-time staff.

What if you work on the public holiday?

If you agree to or are required to work on a public holiday, you have one of two entitlements, depending on the arrangement:

• Public holiday pay plus premium pay: you receive your public holiday pay, plus premium pay of 1.5 times your regular rate for each hour worked on the holiday.
• Regular pay plus a substitute day off: you receive your regular rate for the hours worked, plus a substitute day off later with public holiday pay.

The choice between these usually depends on your agreement with the employer, but you are entitled to one of them. Working a holiday for just your normal pay, with nothing extra, is generally not compliant with the ESA.

Do you have to qualify for public holiday pay?

There is a qualifying rule, often called the last and first rule. To be entitled to public holiday pay, you generally must work your entire last regularly scheduled shift before the holiday and your entire first regularly scheduled shift after it, unless you have reasonable cause for missing one. You do not lose the entitlement simply for being on an approved vacation or a statutory leave around the holiday; the rule targets unexcused absences, not legitimate ones.

What if the holiday falls on your day off?

If a public holiday falls on a day you would not normally work, or during your vacation, you are generally entitled to a substitute holiday with public holiday pay, taken on a day you would otherwise have worked, or, by agreement, public holiday pay for the holiday itself. Either way, you should not simply lose the benefit because of where the holiday landed on the calendar.

What should you do if you were not paid correctly?

1. 1.Check your pay stub around each public holiday to confirm you received public holiday pay or the correct premium and substitute day.
2. 2.Keep a record of the holidays you worked and the hours, so you can calculate what you were owed.
3. 3.Raise it with your employer first; many public holiday pay errors are honest payroll mistakes.
4. 4.If it is not fixed, you can file a claim with the Ministry of Labour. Unpaid public holiday entitlements are an ESA violation.

Public holiday pay is one of several ESA minimums worth knowing, alongside your vacation pay and sick leave. And remember the ESA is only the floor: when your job ends, your severance entitlement is usually far larger than the statutory minimum.

About the Author

Daniel Carter

Legal Writer, Mirza Law

Daniel Carter is a legal writer at Mirza Law in Toronto. He writes about layoffs, employment contracts, and the steps to take before you sign anything from your employer.

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