Current Alberta Employment Standards rules

The Alberta government’s “The Restoring Balance in Alberta’s Workplace ” Act are in effect for temporary layoffs, group terminations, and variances and exemptions. All other Employment Standards changes take effect November 1.

Temporary layoff – Effective August 15, 2020

In Alberta, the maximum duration for temporary layoffs depends on the reason for the layoff, and when the layoff occurred. Many changes were introduced in 2020 to help with layoffs related to COVID-19.

• Temporary layoff period extended to 90 days within a 120-day period (COVID-19 related layoffs up to 180 days are still in place) 
• The employer must give the employee notice of temporary layoff. To be valid, the notice must:

                o    be in writing
                o    state that it’s a temporary layoff notice and its effective date
                o    include sections 62-64 of the Code (page 58)

• Employers will not need to give group termination notice to employees or unions. 

Variances and exemptions:

More flexible rules will make it easier and quicker for employers to get approval for, and renew a variance or exemption.

Changes coming – November 1, 2020

General holiday pay calculation: 

Employers will no longer include vacation pay and general holiday pay in the average daily wage calculation. The new average daily wage will be the employees’ total wages averaged over number of days they worked in the: 

• Four weeks immediately before the general holiday, or 
• Four weeks ending on the last day of the pay period that occurred just before the general holiday. 

An employer can choose which calculation best suits their payroll cycle.

Averaging agreements:

It will be easier to set up agreements going forward.

1. Employers can start or change an hours of work averaging arrangement by giving employees two weeks’ notice, without getting employees’ consent.
2. Arrangements can have an averaging period of up to 52 weeks, up from the current 12 weeks.
3. Arrangements will no longer need to have an end date. 
4. More flexibility to change shifts however, employees must receive 8 hours of rest between shifts. 
5. There is more flexibility for employers to determine how and if daily overtime applies. Overtime is calculated on the greater of weekly or daily overtime hours when daily overtime is included. Averaging period overtime must be paid to the employee no later than 10 days after the pay period that the averaging period ends, which may be as long as 52 weeks, determined by the employers.

Rules for payment of final pay upon termination:

Changes would require employers to pay an employee within one of the following periods that the employer chooses: 

• Ten consecutive days after the end of the pay period in which termination occurred, or
• 31 consecutive days after the last day of employment

Youth Employment:

Employers can more easily hire 13 and 14-year old’s for certain types of jobs because they will not need to get a permit.

• Types of jobs include light janitorial work in offices, coaching and tutoring. It also includes some jobs in the food services industry if the youth is working with someone 18 or older.

Payroll changes:

Employers can correct payroll errors or recover vacation pay paid in advance more quickly because they no longer need to get an employee’s written authorization to deduct an amount that was overpaid on a paycheck. Employers are still required to notify employees the overpayments will be deducted from their paychecks.

Administrative penalties:

Employers will still be penalized for breaking rules, but the penalty amount could be decreased on a case by case basis. Employers will also have up to 30 days to pay administrative penalties. The Director can reduce amounts, and the limitation for progressive penalties is reduced to two years.

General Holiday Pay

• An employee is entitled to general holiday pay if they have worked for the same employer for at least 30 workdays in the 12 months prior to the holiday.
• Most employees are entitled to general holidays and receive general holiday pay if one of the following applies to them:
  • a general holiday is a regular day of work, or
  • they have worked on a general holiday that is not a regular day of work
• If a general holiday falls on an employee's regular day of work:
  • employees who don't work on a general holiday must be paid at least their average daily wage
  • employees who work a general holiday are entitled to either:
    • pay of 1.5 times what they would normally earn for the hours worked in addition to an amount that is their average daily wage, or
    •  their standard wage rate for hours worked plus a day off at a future date and an amount that is their average daily wage for that day off.
  • average daily wage calculated as 5% of the employee’s wages, general holiday pay and vacation pay earned in the 4 weeks immediately preceding the general holiday
• If a general holiday falls on an employee's non-regular day of work:
  • employees who don’t work the general holiday are not eligible for general holiday pay
  • employees who work a general holiday are entitled to pay of 1.5 times what they would normally earn for the hours worked

What is a regular day of work?

Regular day of work is every workday in an employee’s normal schedule: if the employee works the same days every week, those days are considered their regular days of work. Other days are not regular days of work.

What if an employee doesn’t work the same days every week?

Even if an employee works an irregular schedule, some days in their schedule may still be considered regular days of work. To see which days those are, we look at what happens the majority of the time:

• if in the last 9 weeks before the holiday, the employee has worked 5 of the same weekdays, then that weekday is considered a regular day of work (i.e. if a holiday falls on a Monday, and the employee has worked 5 Mondays in the last 9 weeks before the holiday, then Monday is a regular day of work for them) and the rules for regular days of work apply

This rule is sometimes called “The 5 of 9 rule”

Regular day of work

• Not working on a general holiday:
  • if an eligible employee does not work on a general holiday, the employee is entitled to their average daily wage
• Working on a general holiday:
  • if an eligible employee works on a general holiday, the employer has 2 options:
    • pay average daily wage plus 1.5 times employee’s wage rate for all hours worked
    • pay regular wages (and overtime, if applicable) plus provide a future day off with payment of average daily wage

Not a regular day of work

• Not working on a general holiday:
  • employees not working on a general holiday on their non-regular days of work, are not eligible for general holiday pay
• Working on a general holiday:
  • employees who work a general holiday are entitled to pay of 1.5 times what they would normally earn for the hours worked

General holiday pay and overtime

The hours worked on the holiday do not count when calculating overtime hours worked for the week in which the holiday falls.

However, there is one exception to this rule: When an employee on a regular schedule works a general holiday, instead of paying them the general holiday pay, the employer may offer a day off in lieu. In this case, the general holiday is treated like a standard workday. For the hours worked on the general holiday, the employee receives their standard wage rate and standard overtime rules apply. For the day off in lieu, the employee receives their average daily wage.

Note: Overtime pay is not included in the calculation of average daily wage.

Basic rules

• Employers must provide an annual vacation to most employees based on length of service to make sure they can rest from work without loss of income.
• Employers must give vacation time, and employees must take the vacation to which they’re entitled.
• Employees must work for one year before they’re entitled to vacation time
• Employees are entitled to these minimum paid vacations:
  • 2 weeks with pay after each of the first 4 years of employment
  • 3 weeks with pay after 5 consecutive years of employment

Employee eligibility

Basic eligibility

Most employees are entitled to vacation time and vacation pay after being employed for one year.

However, upon employee request and employer’s acceptance, an employee can take vacation with pay before completing a full 12 months of employment.

Exemptions from the minimum standards for vacations and vacation pay

Some employees who work in specified industries and professions aren’t eligible for annual vacations and vacation pay, including:

• licensed or registered salespersons of real estate and securities
• commission salespersons who solicit orders principally outside the place of business of their employer; route salespersons are not exempt
• extras in a film or video production
• licensed insurance salespersons who are paid entirely by commission income

Exceptions to the minimum standards for vacations and vacation pay

Construction workers

Employers aren’t required to give their construction employees vacation time. However, construction employees must be paid vacation pay of at least 6% of their wages.

See Construction – Employment Standards Exceptions for more information

Vacation time

Employee entitlements

Employers must give vacation time and employees must take the vacation to which they’re entitled. Where employees have already been paid vacation pay, their time off will be without additional pay.

How vacation time is calculated

The minimum vacation pay and vacation time is accrued during 12-month periods as follows:

Timing of vacations

Employees must take their vacation time sometime in the 12 months after they earn it.

Length of vacations

An employer is required to provide annual vacations to employees.  Employers are to provide vacations in one unbroken period, however, an employee can request, in writing, for the vacation to be broken into shorter periods and if the request can be accommodated, the employer should provide this.

Vacation time is allowed to be taken in half-day increments if agreed to by the employer and employee.

Disagreements about vacation dates

Employers are allowed to deny requests for vacation at specific times due to operational reasons.  If the employer and employee can’t agree on the employee’s vacation time, the employer can decide when it will be taken. However, the employer must give the employee at least 2 weeks’ notice in writing of the vacation start date.

When a general holiday falls during a vacation

If qualified for the general holiday, the employee can take off either the first scheduled working day after their vacation; or, in agreement with the employer, they can take another day that would otherwise have been a work day, before their next annual vacation.

Vacation pay

Employee entitlements

Vacation pay is based on an employee’s wages paid for work (not other earnings) at the time the vacation is taken.

For the purpose of calculating vacation pay, the definition of wages doesn’t include:

• overtime pay
• general holiday pay
• termination pay
• an unearned bonus
• tips and gratuities, or
• expenses and allowances

How vacation pay is calculated

For employees paid monthly

For employees paid by monthly salary, the employer must pay the employee’s regular rate of pay for the time of their vacation.

Each week of vacation pay is calculated by dividing their monthly wage by 4.3333 (which is the average number of weeks in a month).

For employees paid other than monthly

For employees who are paid hourly, weekly, or by commission or other incentive pay, the employer must pay:

Change of benefits

Increasing vacation pay

If the employer agrees to provide vacation pay greater than required by the Code, Employment Standards can enforce this.

Reducing vacation pay

If the employer intends to reduce an employee's vacation pay, they must notify the employee before the start of the pay period in which the reduction takes effect. However, the rate must always be at least the minimum required by the legislated standards. This can only be applied on future vacation pay to be accrued and can’t be applied retroactively on vacation pay earned, but not yet paid to the employee.

An employee’s annual vacation period can also be reduced if that employee is absent from work. The reduction in vacation period may be made in proportion to the number of days the employee was or would normally have been scheduled to work, but did not.

When vacation pay is paid out

When an employer pays an employee vacation pay each pay period, they must pay it:

• at least once a month,
• on each pay period, or
• at least one day before the employee’s vacation if vacation pay has not previously been paid out, and the employee requests it, and
• no later than the next regular pay day after the vacation begins

An employer must provide an employee with a statement of earnings that includes vacation pay at the end of each pay period.

See Payment of earnings for more information.

Anniversary date

Employers can establish a common anniversary date for employees, for vacation purposes. However, an employee must not lose any entitlement to vacation time or pay as a result of the introduction of a common anniversary date.

Basic rules for Overtime - No changes were made

• Most employees are entitled to overtime pay.
• There are some exemptions for certain industries and professions.
• Overtime is all hours worked over 8 hours a day or 44 hours a week, whichever is greater (8/44 rule).

Pay rate

Except where there’s a written overtime agreement, an employer must pay an employee overtime pay of at least 1.5 times the employee’s regular wage rate for all overtime hours worked

Banked Overtime

Employers will only be required to provide paid time off on a 1 for 1 basis, meaning that where an employee works one overtime hour, they are only entitled to one hour of paid time off. Previously, overtime agreements required lieu time be accrued on a 1.5x basis.

Protected Unpaid Leave of Absences

Eligibility

• Employees are eligible for personal and family responsibility leave if they have been employed at least 90 days with the same employer.
• Eligible employees can take time off work without risk of losing their job.
• Employers must grant personal and family responsibility leave to eligible employees and give them their same, or equivalent, job back when the employee returns to work.
• Employers aren’t required to pay wages or benefits during leave, unless stated in an employment contract or collective agreement.
• Employees on personal and family responsibility leave are considered to be continuously employed for the purposes of calculating years of service.

Personal and Family Responsibility Leave – This unpaid leave will provide up to 5 days of job protection per year for personal sickness or short-term care of an immediate family member. Includes attending to personal emergencies and caregiving responsibilities related to education of a child.

Long-Term Illness and Injury Leave – This unpaid leave will provide up to 16 weeks of job protection per year for long-term personal sickness or injury. Medical certificate and reasonable notice will be required. This will align with the federal Employment Insurance program.

Bereavement Leave – This unpaid leave will provide up to 3 days of job protection per year for bereavement of an immediate family member.

Maternity and parental leave

Employee eligibility

Employees are eligible for maternity or parental leave if they’ve been employed at least 90 days with the same employer.

Eligible employees can take time off work without pay for maternity or parental leave without risk of losing their job.

Employers must grant maternity or parental leave to eligible employees and give them their same, or equivalent, job back when they return to work.

Employers aren’t required to pay wages or benefits during leave, unless stated in an employment contract or collective agreement.

Employees on maternity or parental leave are considered to be continuously employed, for the purposes of calculating years of service.

The length of maternity leave is 16 weeks and the maximum length of parental leave is 62 weeks.

Employees with less than 90 days of employment may still be granted leave. However, their employers aren’t required under employment standards legislation to grant them leave.

Employers can’t discriminate against, lay off or terminate an employee, or require them to resign, because of pregnancy or childbirth.

For more information, contact Alberta Human Rights Commission

If both parents work for the same employer, the employer isn’t required to grant leave to both employees at the same time.

Length of leave

Birth mothers can take up to 16 consecutive weeks of unpaid maternity leave. The number of weeks of leave exceeds the Employment Insurance benefit length by one week in recognition of the waiting period. Employees should be aware of this before taking their leave.

Leave can start any time within the 13 weeks leading up to the estimated due date and no later than the date of birth.

If pregnancy interferes with the employee’s job performance during the 12 weeks before their due date, employers can require that the employee start maternity leave earlier by notifying the employee in writing.

Birth mothers must take at least 6 weeks after birth for health reasons, unless:

• the employer agrees to an early return to duties, and
• the employee provides a medical certificate stating the return will not endanger her health

For more information regarding protected grounds for discrimination, please contact: Alberta Employment Standards

Job creation student wage rates came into effect June 26, 2019

The Employment Standards (Minimum Wage) Amendment Regulation introduces a job creation student wage.

The minimum wage for students under 18 is $13/hour as of June 26, 2019. Employers can still choose to pay students more than this minimum wage.

This rate applies to the first 28 hours worked in a week when school is in session. Students must be paid the general minimum wage of $15/hour for any hours exceeding 28 hours in one week. Overtime rules still apply.

• For example, a student who worked 30 hours in a week can be paid as low as $13/hour for the first 28 hours, but must be paid no less than $15/hour for the 2 additional hours they worked.
• The new job creation student wage of $13/hour will apply to all regular hours worked when school is not in session, such as during spring break, Christmas break or during the summer vacation period. Overtime rules still apply.

Who the job creation student wage applies to:

• The job creation student wage applies to any student under 18 who attends school up to grade 12, post-secondary or vocational school.
• Subject to any limitations that may apply as a result of an individual contract of employment or an applicable collective agreement, if a student is already working and making $15/hour or more, the employer may choose to reduce their wage to as low as $13/hour, but not lower.
• In all circumstances an employer must tell the employee that they are going to reduce the employee's wage before the start of the pay period when this lower wage would take effect.
• The job creation student wage only applies to students enrolled in an educational institution and does not apply to youth who are out of school.

Contact our Business Counselors with any outstanding questions.