Family Day is a public holiday under employment/labour standards legislation, observed in February every year in seven jurisdictions in Canada.

Alberta, Ontario, Saskatchewan, Manitoba, Prince Edward Island, British Columbia and in 2015 Nova Scotia are the Canadian jurisdiction that recognize Family Day as a public (statutory) holiday and allow workers that qualify time off with pay on that day.

This year except in British Columbia and Nova Scotia, family day (observed the third Monday in February every year) falls on February 17, 2014.

In the sixth jurisdiction that recognize Family Day, it is celebrated the second Monday in February every year and this year falls on February 10, 2014.

The Nova Scotia government passed Bill 15, An Act to Establish a Holiday in February Act on December 12, 2013 to establish the third Monday in February in 2015 and in each subsequent year as a public holiday starting in February 2015.

Family Day coincides with the US holiday President’s Day.

Although this holiday is celebrated in five jurisdictions this year on February 17, 2014, generally speaking, an employee will be governed by the laws of the jurisdiction in which he or she works. Employment standards legislation and regulations establish minimum standards of employment for most employers and employees working in a specific jurisdiction. Employers and employees (or their agents such as unions) may agree to more favourable (and different) terms in their conditions of employment or collective agreements.

To be eligible for a paid holiday, employees must ordinarily meet certain requirements, such as working a minimum number of hours or days in a given period prior to the holiday. The rules governing the treatment of public holidays differ between jurisdictions.

Below is an overview of legal requirements and issues surrounding Family Day in Alberta, Saskatchewan, Manitoba (known as Louis Riel Day), Ontario and Prince Edward Island (known as Islander Day).

Alberta

Family Day in Alberta was initiated to recognize the values of home and family. Alberta was the first province to establish Family Day as one a general holiday under the Employment Standards Code. Employees get a day off with regular pay. If the employee is required to work on the holiday, the employee must be paid regular pay plus a premium rate of pay (premium pay is 1½ times the employee’s regular rate of pay) for the hours worked on the holiday or regular wages, and get a substituted day off with pay at a later date.

To be eligible for public holiday pay, employees:

• Must have worked 30 days for their employer in the preceding 12 months
• Must work their scheduled shift before and after the holiday (unless employer consent is given)
• Must work on the general holiday if requested

The Alberta Employment, Immigration and Industry Ministry clarifies that under Alberta’s employment standards legislation, the following rules apply:

• If employees normally work Mondays and are given Family Day off, then they are entitled to their regular daily wage.
• If employees normally work Mondays and work Family Day, then they are entitled to their regular daily wage plus time-and-a-half for all hours worked. Alternatively, they are entitled to their regular wage for each hour worked on the holiday, plus another regular workday off with pay.
• If employees normally have Mondays off but they work on Family Day, then they are entitled to pay at a rate of time-and-a-half of their regular wage for all hours worked.
• If employees normally have Mondays off and do not work on Alberta Family Day, then they are not entitled to general holiday pay and are not entitled to an extra day off. However, employees may receive general holiday pay or an extra day off if it is a part of their employment contract or a part of a union agreement. Employees should check with their employer.

Note that some employees are exempt from general holidays and general holiday pay.

Saskatchewan

Saskatchewan became the second jurisdiction in Canada to enact Family Day, recognizing the values of home and family.

Under the Saskatchewan Labour Standards Act, an employee who normally works Mondays and is given Family Day off is entitled to public holiday pay. In Saskatchewan, it does not matter how recently employees were hired, or how many days they worked before they are entitled to public holidays. All employees (whether full-time or part-time, permanent or on a limited term contract) qualify for public holidays unless they work in jobs exempt from the public holiday provision of the Act, or work in businesses with special rules.

Most employees get 1/20 of their regular wages in the four weeks before a public holiday as public holiday pay, no matter what their days of work. The calculation includes all wages and holiday pay, but not overtime. Construction employees paid by the hour are entitled to 3.5 percent of all gross wages (exclusive of overtime and annual holiday pay) earned each calendar year as public holiday pay. Employees on a fixed salary that have the day off with pay will have received proper payment for the public holiday.

When employees work overtime during the week of a public holiday, they get overtime after eight hours per day and 32 hours per week. The 32 hours does not include any hours worked on the holiday.

If employees work on a holiday, except those engaged in the operation of a well-drilling rig, they are entitled to time and one half for all hours worked. This includes salaried employees and managers. The time-and-one-half rate is in addition to the normal day’s pay.

The Act does not apply to undertakings in which only members of the employer’s immediate family are employed, to sitters or to persons employed primarily in farming, ranching or market gardening, with the exception of egg hatcheries, greenhouses, nurseries, bush clearing operations and commercial hog barns. Teachers are also excluded from public holiday provisions.

Employers can apply for a permit from the Director of Labour Standards allowing the public holiday to be observed on another day. The director may order that the holiday be observed on another day if a majority of the employees agree. If the employees are represented by a trade union, the trade union and the employer may agree in writing to observe the public holiday on another day.

Manitoba
Manitoba became the third jurisdiction in Canada to enact Family Day. The government decided to be different by naming the holiday in honour of the Métis leader Louis Riel who led the Red River and North-West Rebellions in a fight to maintain aboriginal rights. Schools in the province were asked to submit one name that would be of relevance to Manitoba and reference citizenship, history, culture, the arts, sports or a significant individual. Eleven schools submitted the name “Louis Riel Day”.

According to the Employment Standards Branch of the Department of Labour and Immigration, general holiday pay (public holiday pay) can be calculated in two ways:

• If employees’ schedules are normally the same (their wages do not vary), they are paid their regular wages for the general holiday. For example: an employee may normally work eight hours a day, five days a week. The general holiday is a Monday and he/she did not work. General holiday pay for the day is eight hours at his/her regular wage.
• If an employee’s hours or wages change from day to day or pay period to pay period, the general holiday pay is five percent of the employee’s total wages in the four-week period immediately before the holiday. Overtime should not be included in this calculation. For example: a part-time employee may work about 25 hours each week at $10 per hour, but his/her schedule is different each day. In the four weeks before the holiday, he/she earned $1,000. General holiday pay is $1,000 times five percent, or $50.

In the construction industry, employees are entitled to general holiday pay, but it is calculated as a percentage of their regular wages. It is often paid on every cheque instead of on the holiday.

It does not matter how long an employee has worked for an employer to be entitled to a general holiday and general holiday pay.

All employees receive general holiday pay unless:

• They are absent from work on a general holiday that is normally a workday and they are expected to work
• They are absent from work, without permission, on their last scheduled workday before the holiday or their first scheduled workday after the holiday, unless they are absent because they are ill

Employees who work on a general holiday are normally entitled to 1½ times their regular rate of pay for the hours worked. In addition they also receive their general holiday pay.

In Manitoba, even when collective agreements do not mention Louis Riel Day, it is still a general holiday for all employees who work in a provincially regulated industry. Louis Riel Day is a minimum standard, and collective agreements cannot have provisions that offerless than any minimum standard.

The employer, with the written agreement of the majority of the employees or by their collective (union) agreement, can choose to substitute a different day in the place of a general holiday.

Ontario
Ontario became the fourth jurisdiction in Canada to enact Family Day, amid the most controversy, and surveys upon surveys. The holiday is in recognition of family. Ontarians have a day off to spend with their friends and families, and to enjoy the many great outdoor activities the province has to offer.

Many employers and business groups were concerned with the increased labour costs and lower productivity. Organizations have to pay time and a half for the holiday if they wish to meet customer demands, contributing to the increased labour costs. Some organizations will also lose revenue.

There has also been a lot of discussion and confusing information about an employer’s obligation to provide family day in February if they already provide a greater benefit, meaning if they already provide more than nine paid public holidays a year. The principle is found in the Employment Standards Act: provisions of an employment contract, including a collective agreement, prevail if they provide a greater benefit to an employee than the employment standard.

Ontario’s Ministry of Labour recently clarified the issue by indicating that if an employer provides 10 or more paid holidays, employees may not automatically be entitled to Family Day. Employees should speak to their employer or union official to determine whether they will have Family Day off. More information on the issue of greater benefit and legal requirements can be found on HRinfodesk (login required).

Family Day must be treated like any other public holiday. Generally, if a public holiday falls on a day that would ordinarily be a working day, the employee is entitled to the day off work and to be paid public holiday pay. However, the employee would not be entitled if he or she failed, without reasonable cause, to work all of his or her last regularly scheduled day of work before Family Day or all of his or her first regularly scheduled day of work after Family Day.

It does not matter how recently the employees were hired, or how many days they worked before the public holiday (although that can affect the amount of their public holiday pay).

Qualified employees have a right to refuse to work on a public holiday, and to take the day off with pay. However, if an employee who qualifies agrees in writing to work on the holiday, the employee is either:

• Entitled to wages at his or her regular rate for all hours worked on the public holiday plus another regular working day off with public holiday pay (this substitute day off must be scheduled for no later than three months after the public holiday or, if the employee has agreed in writing, up to 12 months after the public holiday), or
• Entitled to public holiday pay for the public holiday plus premium pay (1½ times the employee’s regular rate) for all hours worked on the public holiday. In this case, the employee is not given a substitute day off.

There are three categories of employees who may not have the right to the day off. These include employees who:

• Are not covered by Ontario’s Employment Standards Act, (i.e., employees who work in federally regulated workplaces such as banks, telecommunications companies, railways and airlines, or who are federal civil servants).
• Are covered by the ESA, but fall within a special rule or exemption involving the ESA’s public holiday provisions. For a complete list of employees who fall under a special rule or exemption, consult the HRinfodesk Quick Reference Chart, Exemptions from Certain Parts of the Employment Standards Act and Special Rules.
• Those whose collective agreement or employment contract is more generous to them in relation to public holidays than the public holiday provisions in the ESA (see above explanation).

Generally, employees who don’t qualify for public holiday entitlements must work on Family Day if asked by their employer. Most non-qualified employees are entitled to be paid 1½ times their regular rate of pay for each hour worked on Family Day. There is no substitute day off. If a non-qualified employee is not asked to work on Family Day, he or she gets the day off with no pay.

Family Day was also made a public holiday under the Ontario Retail Business Holidays Act (RBHA). Most retail outlets must close on a day that is a holiday under that Act. The RBHA provides certain municipalities the right to have their own bylaws.

Exempt from the Act are book or magazine stores under 2,400 square feet with a maximum of three employees, pharmacies under 7,500 square feet, flower shops and gas stations. Stores may also be open on these holidays if exempted under specific municipal bylaws for the development or maintenance of tourism. Any questions about tourism designations or local hours of retail operation should be directed to the municipal clerk’s office in your municipality.

The City of Toronto Act, passed in January 2007, exempted the City of Toronto from the Retail Business Holidays Act, giving the city the ability to set its own rules regarding retail business holiday shopping. You should be aware that retailers within the municipal boundaries of the City of Toronto are permitted to open on Family Day.

Prince Edward Island
Prince Edward Island is the latest province to enact family day, under the name of Islander Day.

Employers are required to provide eligible employees who worked for at least 30 calendar days in the 12 calendar months before the public holiday with time off work with regular pay, or average daily wages (when wages vary), exclusive of overtime.

In order to have a day off with pay for Islander Day, an employee must also:

• Have earned pay on at least 15 of the 30 calendar days before the holiday
• Have worked his/her last scheduled shift before the holiday and his/her first scheduled shift after the holiday.

An employee who qualifies for the paid holiday but who is not scheduled to work on the paid holiday is entitled to another day off with pay.

Note that some employees are exempt from general holidays and general holiday pay. Some businesses like restaurants, convenience stores and tourist attractions remain open.

An employee who works on a holiday and who is qualified to be paid holiday pay is entitled to receive the following:

• The amount the employee would have normally received for that day; plus,
• One and one-half times the employee’s regular rate of wages for the number of hours worked on that holiday;

or

• The regular rate of wages for the number of hours worked on that day; plus,
• Another day off with pay for the equivalent hours worked.

Note: an employee who has an arrangement with their employer where they may elect to either work or not work when requested does not qualify.

Important note about federally regulated workplaces: Provincial employment standards legislation does not apply to employees of federally regulated businesses like banks, telecommunications companies, railways and airlines, or to federal civil servants. These employers are covered by the Canada Labour Code, which does not provide for family day. However, federally regulated employers can at their discretion add Family Day as a public holiday or floater day in workplace policies.

Advantages of providing Family Day
Family day provides a welcome break for employees during one of the coldest month of the year, between New Year’s Day and Easter.

It is a relatively easy and cost-efficient way for workplaces to become more family-friendly by allowing employees the use of their basic statutory holidays and offering additional holidays. These holidays provide employees with an opportunity to spend more time with their families and to deal with household responsibilities.

Several political parties and groups are calling for the federal government to make this a national holiday across Canada.

Yosie Saint-Cyr
First Reference Human Resources and Compliance Managing Editor