- HR Policies
Olivia Cicchini, Employment Law Expert
(Last updated )
Olivia Cicchini, Employment Law Expert
(Last updated )
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On April 7, 2022, Ontario’s Bill 88 (also referred to as the Working for Workers Act, 2022) was passed by the legislature. It received Royal Assent on April 11, 2022.
Similar to its sister legislation, Bill 27, Working for Workers Act, 2021 that received Royal Assent on December 2, 2021, the new Act will provide increased rights for many employees across Ontario and place new duties on employers.
Given that the Working for Workers Act, 2022 is now fully in effect, it is useful to discuss the impacts it will have on employment in the province. This blog details the portions of the Act that are expected to impact the majority of employers, namely the amendments to the Employment Standards Act, 2000 (ESA), Occupational Health and Safety Act (OHSA), and the creation of the Digital Platform Workers’ Rights Act, 2022 (DPWRA).
The Working for Workers Act, 2022 has amended Section 3 of Ontario’s Employment Standards Act, which contains information on which workers the ESA applies to. The new amendment has added who the ESA does not apply to, namely certain business consultants and information technology consultants.
Business consultant is defined in the Act as, “an individual who provides advice or services to a business or organization in respect of its performance, including advice or services in respect of the operations, profitability, management, structure, processes, finances, accounting, procurements, human resources, environmental impacts, marketing, risk management, compliance or strategy of the business or organization.”
Information technology consultant is defined in the Act as, “an individual who provides advice or services to a business or organization in respect of its information technology systems, including advice about or services in respect of planning, designing, analyzing, documenting, configuring, developing, testing and installing the business or organization’s information technology systems.”
The Act goes on to say that business and information technology consultants as described above are only exempt from the ESA if certain requirements are met. These requirements include:
1. The business consultant or information technology consultant provides services through:
(i) a corporation of which the consultant is either a director or a shareholder who is a party to a unanimous shareholder agreement, or
(ii) a sole proprietorship of which the consultant is the sole proprietor, if the services are provided under a business name of the sole proprietorship that is registered under the Business Names Act.
2. There is an agreement for the consultant’s services that sets out when the consultant will be paid and the amount the consultant will be paid. The amount must be equal to or greater than $60 per hour, excluding bonuses, commissions, expenses and travelling allowances and benefits, or such other amount as may be prescribed, and must be expressed as an hourly rate.
3. The consultant is paid the amount set out in the agreement as required by paragraph 2.
4. Such other requirements as may be prescribed.
This amendment to the Employment Standards Act may appear as an exemption on its face but may actually work to expand the Ontario ESA coverage of certain consultants as the exemption requirements are so narrow. Nonetheless, this amendment will impact the division of independent contractors and employees as prescribed by the ESA.
These new exemptions will come into force on January 1, 2023.
One of the most notable changes brought on by the Working for Workers Act, 2022 is the new requirement for employers to implement a policy with respect to electronic monitoring. More specifically, the new Part XI.1 of the Act imposes a requirement on employers with 25 or more employees to have a written policy with respect to the electronic monitoring of employees.
While the Working for Workers Act, 2022 does not provide a definition of electronic monitoring, it can be interpreted as, “tracking employee location and/or activities through various electronic devices such as computers, cellphones, GPS systems, and more with the goal of ensuring that workers are being productive and performing the duties of their employment safely.”
The electronic monitoring policy must specifically state if the employer is electronically monitoring its employees.
If the employer is in fact engaging in electronic monitoring, the policy must provide a description of how and in what circumstances the employer is monitoring employees, as well as the purposes for which information obtained through electronic monitoring may be used by the employer.
The Working for Workers Act, 2022 states that employers have six months after April 11, 2022, (October 11, 2022) to implement the written electronic monitoring policy. After January 1, 2023, employers with 25 or more employees on January 1st of each year will have until March 1st of that year to implement the policy.
Lastly, the Act states that employers must provide a dated copy of the policy to employees within 30 days of preparing the policy, or if an existing written policy is changed, within 30 days of the changes being made.
The final amendment to Ontario’s Employment Standards Act pertains to the job-protected Reservist Leave. Section 50.2 of the ESA, which governs reservist leaves of absence, has been amended to state that employees participating in Canadian Armed Forces military skills training are now eligible for this leave as well.
The section is also amended to provide that an employee is entitled to leave after being employed by the employer for three consecutive months (whereas the length of service previously required to commence this leave was six consecutive months). This provision comes into effect the day of Royal Assent.
The first notable amendment to the OHSA is that certain employers will now be required to have naloxone kits on hand in the workplace. The Working for Workers Act, 2022 states that where an employer becomes aware, or ought reasonably to be aware, that there may be a risk of a worker having an opioid overdose at a workplace where that worker performs work for the employer, the employer must provide and maintain in good condition a naloxone kit in that workplace to reverse the potentially fatal effects of an opioid overdose.
The Act goes on to state that the employer must ensure that, at any time there are workers in the workplace, the naloxone kit is in the charge of a worker who works in the vicinity of the kit and who has received the appropriate training. Appropriate training includes having the ability to recognize an opioid overdose, to administer naloxone, and to acquaint the worker with any hazards related to same.
This requirement will come into force on a day to be named by proclamation of the Lieutenant Governor, which has not yet been established.
The Working for Workers Act, 2022 has also amended the Ontario OHSA to increase fines for certain convictions as well as the limitation period for instituting a prosecution under the OHSA (increased from one year to two years).
The maximum fine for a corporation is $1,500,000 under the OHSA. While this remains unchanged, the Act has amended the Occupational Health and Safety Act to state that a director or officer of a corporation who fails to ensure the corporation complies with the OHSA, is guilty of an offence and on conviction is liable to a fine up to $1,500,000, an imprisonment for a term of not more than 12 months, or to both.
The Working for Workers Act, 2022 also lists certain aggravating factors that will be considered for the purposes of determining a penalty. Some of these factors include, but are not limited to, if the offence resulted in the death, serious injury or illness of one or more workers, if the offence was committed recklessly, if the defendant lacks remorse, and so on.
The fines for an OHSA contravention by an individual (who is not a director or officer) have been increased from $100,000 to up to $500,000, depending on the contravention and any aggravating circumstances as listed above.
The elongated limitation period and increased fines/penalties provisions come into force on July 1, 2022.
One of the most prominent ways the Working for Workers Act, 2022 is awarding additional rights to workers in Ontario is through the enactment of the Digital Platform Workers’ Rights Act, 2022.
The DPWRA defines digital platform work as “the provision for payment ride share, delivery, courier or other prescribed services by workers who are offered work assignments by an operator through the use of a digital platform.” This new Act gives digital platform workers more rights under the ESA, such as:
The DPWRA applies to a worker if the worker’s work assignment is to be performed in Ontario, or if the worker’s work assignment is to be performed in Ontario and outside Ontario but the work performed outside Ontario is a continuation of the work performed in Ontario.
Despite the Working for Workers Act, 2022 already receiving Royal Assent, the DPWRA contained within states that it will come into force on a day to be named by proclamation of the Lieutenant Governor, which has not yet been established.
The DPWRA is intended to apply retroactively, so we may find that it applies even before the date of Royal Assent (similar to the non-compete provisions under the Working for Workers Act, 2021).
In addition to amendments to the ESA, OHSA and the creation of the DPWRA, the Fair Access to Regulated Professions and Compulsory Trades Act, 2006 (FARPCTA) has also been amended.
The FARPCTA has been amended to establish a timeline within which regulated professions must respond to applications for registration from domestic labour mobility applicants unless an exemption is granted.
A domestic labour mobility applicant is defined as “an individual who has applied for registration by a regulated profession in Ontario and is currently registered with a body that regulates the same profession in a Canadian province or territory other than Ontario.”
These amendments have been enacted to grow the domestic labour market by reducing obstacles and increasing mobility for skilled professionals and tradespeople to become part of the Ontario workforce. These new requirements come into force the day of Royal Assent.
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