Statutory holidays are not the same thing as annual employee vacation. Because tourism businesses often aren’t in a position to close their doors during statutory holidays, you must be familiar with your obligation under the Employment Standards Act to provide your employees with proper statutory holiday benefits.
Part 5 of the Act sets out the minimum requirements in relation to time off and time worked on statutory holidays. Employers must give eligible employees either a day off with pay on a statutory holiday or, if they are scheduled to work on the statutory holiday, a premium for working on the holiday and an additional day’s pay. Further details are outlined below.
Statutory holidays include New Year’s Day, Family Day, Good Friday, Victoria Day, Canada Day, BC Day, Labour Day, Thanksgiving Day, Remembrance Day, Christmas Day and any other holiday prescribed by regulation (none exist at the present time). Other recognized public holidays such as Easter Sunday, Easter Monday and Boxing Day do not qualify as statutory holidays for the purposes of the Act.
It is important to recognize that Family Day and BC Day are statutory holidays only for provincially regulated employees in BC. This is because federally regulated employees are covered by the Canada Labour Code instead of provincial employment standards and the Canada Labour Code does not provide for Family Day or BC Day. Nevertheless, federally regulated employers may choose to recognize Family Day and/or BC Day as a paid or unpaid time off.
View Statutory Holidays in BC for a complete list of the specific dates for each of the statutory holidays in BC.
Not all employees are entitled to statutory holidays. Section 44 says that statutory holidays only apply to employees who have been employed by you for at least 30 calendar days before the statutory holiday and have either:
- Worked or earned wages for 15 of the 30 calendar days preceding the holiday; or
- Worked under an averaging agreement at any time within the 30 calendar days preceding the holiday.
This requirement means that part-time employees who do not work under an averaging agreement and who work three days each week or fewer, will not likely be entitled to the statutory holiday benefit. This is because working three days each week in the 30-calendar-day period preceding a statutory holiday will likely only result in the employee working 12 to 13 days in that 30-day period. In contrast, employees working under an averaging agreement need only work one day or a portion of one day in the 30-calendar-day period in order to be covered by the statutory holiday provisions of the Act. Prior to each statutory holiday it is important to determine each individual employee’s eligibility under Section 44 – see Interpretation Manual – Section 44 – Eligibility for Stats. Simply assuming that all employees scheduled to work three days per week or fewer are ineligible could result in a failure to comply with the Act if some of those employees have worked extra shifts during the 30-day period preceding the holiday.
STATUTORY HOLIDAY PAY
Statutory holiday pay is payable to eligible employees regardless of whether the statutory holiday falls on the employee’s regularly scheduled day off. An eligible employee’s entitlement to statutory holiday pay is based on the employee’s average day’s pay over the previous 30-calendar-day period. For the specific formula used to calculate this figure, see section 45 of the Act, Statutory Holiday Pay. For more information on statutory holiday pay generally visit the Interpretation Manual – Section 45.
WORKING ON A STATUTORY HOLIDAY
Employees who meet the eligibility requirements and who are scheduled to work on a statutory holiday are entitled to a combination of:
- one-and-one-half times the employee’s regular wage for the time worked up to 12 hours;
- double the employee’s regular wage for any time worked over 12 hours; and
- an average day’s pay.
Employees who do not meet the eligibility requirements and who work on a statutory holiday are only entitled to their regular pay for that day.
The Act does not specifically say that an employee must work the entire day on the statutory holiday in order to be eligible to receive an average day’s pay in addition to pay for the time worked. For more information see the Government’s Interpretation Manual – Section 46.
SUBSTITUTING ANOTHER DAY FOR A STATUTORY HOLIDAY
Section 48 allows the substitution of another day for a statutory holiday. A substitution can be made for one or more employees provided that the employee or a majority of the employees affected agree to the substitution. The employer must retain for four years a record of the agreement to substitute another day for a statutory holiday.
If another day is substituted for a statutory holiday, the statutory holiday provisions apply to that day as if it were a statutory holiday defined in the Act. For more information visit the Government’s Interpretation Manual – Section 48.
EXEMPTIONS FROM THE STATUTORY HOLIDAY PROVISIONS
Employees covered by a collective agreement that contains any provisions respecting statutory holidays are exempted from the statutory holiday provisions of the Act. However, if a collective agreement does not contain any provisions respecting statutory holidays, the provisions of the Act are deemed to be incorporated into the collective agreement.
The regulations also specifically exempt certain employees from the statutory holiday provisions of the Act and provides special rules for others. For example, section 36 of the Employment Standards Regulation specifically states that managers are excluded from statutory holiday pay requirements. A manager is defined in the Regulation as a person whose principle employment responsibilities consist of supervising and/or directing human or other resources or a person employed in an executive capacity. For a complete list of these exemptions and special rules for exempted employees, view variance and exemptions.
Information provided by Ryan Anderson, an employment lawyer with Mathews Dinsdale & Clark LLP. The information provided in this article is necessarily of a general nature and must not be regarded as legal advice. For more information about Mathews Dinsdale & Clark LLP, please visit mathewsdinsdale.com.