Ontario Government Seeks to Introduce New Measures for Employers Under the Proposed Working for Workers Act, 2022
Last year, the Ontario government introduced Bill 27, or the Working for Workers Act, 2021. This legislation proposed various measures that were applicable to employers, including requiring certain employers in Ontario to implement new right to disconnect policies. We previously wrote about the Working for Workers Act, 2021 when it was first introduced, and the Ontario government has since proposed Bill 88, or the Working for Workers Act, 2022 [Bill 88].
If passed, Bill 88 would introduce higher penalties and new obligations for employers, including a requirement for certain employers to have an electronic monitoring policy. Bill 88 would also create rights for certain workers.
The following is a summary of the key measures under Bill 88 that, if passed, would apply to workplaces:
Proposed Amendments to the Employment Standards Act, 2000 [ESA]
Exemption for Certain Business and Information Technology Consultants (“Consultants”)
Bill 88 seeks to amend the ESA to exempt certain Consultants from ESA provisions if the following requirements are met:
- the Consultant provides services through a corporation of which the Consultant is:
- a director or shareholder who is a party to a unanimous shareholder agreement; or
- the sole proprietor of a sole proprietorship, if the services are provided under the sole proprietorship’s business name that is registered under the Business Names Act;
- there is an agreement for the Consultant’s services that specifies when and how much the Consultant will be paid, the amount which must be equal to or greater than $60 per hour, excluding bonuses, commissions, expenses and travelling allowances and benefits, or such other amounts as may be prescribed, and must be expressed as an hourly rate;
- the Consultant is paid the amount set out in the agreement; and
- other requirements as may be prescribed.
Given that the specific criteria above, Bill 88 suggests that consultants who do not meet the listed requirements could still be protected under the ESA.
Reservist Leave Amendment
Bill 88 would also amend the reservist leave of absence section of the ESA. Employees would be entitled to the leave after three consecutive months of work, rather than the six months that is currently provided for under the ESA. Employees participating in Canadian Armed Forces military skills training would also be entitled to the leave.
Electronic Monitoring Policies
The proposals surrounding the electronic monitoring policies are similarly designed as those implemented for the right to disconnect policies.
If passed, Bill 88 would require employers in Ontario with 25 or more employees to implement a written policy with respect to employees who are electronically monitored. Based on the current provisions of Bill 88, employers would be required to include the following elements in its electronic monitoring policy:
- whether the employer electronically monitors its employees and if so,
- describe how, and in what circumstances, the employer may electronically monitor its employees;
- disclose the purposes for which the employer may use information obtained through electronic monitoring; and
- the date that the policy was prepared, and the date of any subsequent amendments made to the policy.
Employers would also be required to provide a copy of its written electronic monitoring policy to all employees within 30 days from the day that the policy is required to be in place, or within 30 days of subsequent changes made to the policy. Additionally, employers will be required to provide a copy of its written electronic monitoring policy to a new employee within 30 days of the employee being hired, or within 30 days from the day that the employer is required to have the policy in place, whichever is later.
An employer who is a client of a temporary help agency and is required to have an electronic monitoring policy would be required to disclose its policy to an assignment employee within 24 hours of the start of the assignment or within 30 days from the day the employer is required to have the policy in place, whichever is later.
Notably, Bill 88 would not affect or limit an employer’s ability to use information obtained through electronically monitoring its employees.
Key Considerations for Employers
Currently, private-sector employers in Ontario are not required by legislation to implement distinct policies that outline their electronic monitoring practices to employees. During the COVID-19 pandemic, many employers may have increasingly engaged in electronically monitoring of their employees due to a transition to a remote-work model. Although it is best practice for employers to avoid unnecessarily monitoring their employees, Bill 88 would require employers to be transparent about their electronic monitoring practices.
Employers in Ontario should continue to monitor for any further news or guidance that the provincial government may release in relation to the electronic monitoring policy requirement in Bill 88.
Proposed Amendments to the Occupational Health and Safety Act [OHSA]
Naloxone Kits in Certain Workplaces
Bill 88 seeks to introduce certain amendments to OHSA, including requiring employers to provide and maintain (in good condition) a naloxone kit in their workplace if those employers become aware, or ought reasonably to be aware, that there may be a risk of a worker having an opioid overdose at their workplace.
Increased Maximum Fines for OHSA Violations
Bill 88’s proposed amendments to OHSA would increase the maximum amount that directors and officers of a corporation can be fined when they fail to comply with their duties under OHSA. The maximum fine for directors and officers who violate OHSA would increase from $100,000 to $1,500,000, and from $100,000 to $500,000 for individuals who violate OHSA.
Bill 88 also proposes the following list of aggravating factors that would be considered in determining a penalty:
- the offence resulted in the death, serious injury, or illness of one or more workers;
- the defendant committed the offence recklessly;
- the defendant disregarded an inspector’s order;
- the defendant was previously convicted of an OHSA offence or an offence under other legislation;
- the defendant has a record of prior non-compliance with OHSA or its regulations;
- the defendant lacks remorse;
- the defendant’s conduct has an element of moral blameworthiness;
- the defendant was motivated by a desire to increase revenue or decrease costs;
- after committing the offence, the defendant:
- attempted to conceal the offence from the Ministry of Labour, Training and Skills Development (“Ministry”) or other public authorities, or
- failed to co-operate with the Ministry or other public authorities; and
- any other aggravating factor that is prescribed.
Key Considerations for Employers
Given the many different considerations involved in calculating fines, maximum penalties under OHSA are not typically enforced. However, the proposed increase to the maximum fines suggests that future penalties against employers and individuals may increase in amounts and severity. This trend emphasizes the importance of employers complying with their health and safety obligations under OHSA.
Although recent developments have indicated that Ontario is now seeking to remove its COVID-19 public health restrictions, health and safety remain high priorities in workplaces. Therefore, employers should revisit their health and safety policies to ensure that their practices comply with their OHSA obligations.
Introduction of the Digital Platform Workers’ Rights Act, 2022 [DPWRA]
The DPWRA would be enacted and would establish requirements operators working with digital platform workers. These requirements include providing digital platform workers with:
- a minimum wage;
- a recurring pay period and pay day;
- a right to information in writing that describes factors such as how work is assigned, how pay is calculated, when and how tips are collected, and the recurring pay period/pay day, which must be provided to the digital platform worker under prescribed timelines;
- a right to amounts earned by tips and other gratuities;
- a right to notice of the digital platform worker from the digital platform;
- a right to resolve disputes in Ontario; and
- a right to be free from reprisal.
Other proposals under the DPWRA include prohibiting operators from penalizing digital platform workers for certain actions of the worker, as well as setting out the rules and requirements for complaints, offences and prosecutions, director liability, record keeping, compliance inspections, enforcements, collections, and limitation periods.
We will be addressing in detail the proposed Digital Platform Workers’ Rights Act, 2022 in a separate blog.
Other Proposed Measures
In addition to the measures above, Bill 88 would amend the Fair Access to Regulated Professions and Compulsory Trades Act, 2006 which would require a regulated profession to decide on a domestic labour mobility applicant’s application within 30 business days after receiving the application.
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 regulatory body in a different Canadian province or territory.
In its first draft of the proposed Act, the Ontario government originally sought to introduce the Traditional Chinese Medicine Repeal Act, 2022, which would have effectively deregulated the College of Traditional Chinese Medicine Practitioners and Acupuncturists of Ontario (the “College”). Many practitioners and students within the College opposed the proposal, and the Ontario government has since decided to remove this portion of Bill 88.
Takeaways
If passed, Bill 88 would introduce several changes to the workplace landscape. As described above, employers should continue monitoring for updates on the electronic monitoring policy requirement, as well as update their health and safety policies to ensure compliance with the law.
Notably, Bill 88 seeks to introduce the DPWRA, which creates a set of rights for digital platform workers without calling them “employees” under the ESA. This proposed change is indicative of a potential trend towards introducing parallel legislative schemes for certain groups of workers.
Employers should be aware that if Bill 88 is passed, certain Consultants will not be considered “employees” under the ESA, and as such, would not be entitled to the same protections and minimum standards as employees that do fall under the ESA.
We will continue to monitor for news on Bill 88 and will promptly post about any relevant updates.
