On March 20, 2023, the Ontario government tabled Bill 79, Working for Workers Act, 2023 (“Bill 79”). If passed, Bill 79 would significantly amend workplace legislation—including the Employment Standards Act, 2000 (“ESA”), the Occupational Health and Safety Act (“OHSA”), and the Employment Protection for Foreign Nationals Act, 2009 (“EPFNA”)—to provide greater protections for remote and precarious workers.
This is the latest in a series of legislative assessments by the provincial government aimed at workplaces, preceded by the Working for Workers Act, 2021 and the Working for Workers Act, 2022, which introduced changes including requirements for certain employers to implement policies on disconnecting from work and electronic monitoring. For more information, see our blog on the 2021 legislation and our blog on the 2022 legislation.
A summary of key proposed changes of interest to employers is set out below.
Amendments to the OHSA
Increased Penalties for Convicted Corporations
Bill 79 would amend the OHSA to increase the maximum fine for a corporation convicted under such legislation from $1.5 million to $2 million. This increased maximum would establish Ontario as the jurisdiction with the highest maximum corporate fines under workplace health and safety legislation across Canada, and would be in line with the increases to maximum fines implemented last spring for individuals (up to a maximum of $500,000) and corporate directors (up to a maximum of $1,500,000).
Amendments to the ESA
Entitlements Related to Group Terminations Expanded to Include Remote Workers
The ESA entitles employees to increased notice of termination or pay in lieu where 50 or more employees are terminated at an employer’s “establishment” within a four-week period. Currently, the ESA defines “establishment” as “a location at which the employer carries on business”. If passed, Bill 79 would expand this definition to include an employee’s private residence if the employee performs work in their residence and does not perform work at any other location where the employer carries on business. As a result, in the event of a group termination, employees who work exclusively from home will qualify for the same improved notice as their on-site counterparts.
This change would come into force on the later of July 1, 2023 and the day Bill 79 receives Royal Assent.
Enhanced Military Reservist Leave
Bill 79 would expand eligibility for reservist leave to employees who are in treatment, recovery, or rehabilitation in respect of a physical or mental health illness, injury, or medical emergency resulting from their involvement in a Canadian Forces operation. Bill 79 would also reduce the requisite period of employment to qualify for reservist leave from three months to two months.
Amendments to the EPFNA
Increased Fines for Withholding Foreign Workers’ Passports
The EPFNA prohibits employers of foreign nationals from taking possession of or retaining a foreign national’s passport or work permit. Bill 79 would amend the EPFNA to impose significantly higher maximum fines on individuals and corporations convicted of this offence. Individuals convicted of withholding passports would be liable to either a fine of up to $500,000, up to 12 months imprisonment, or both. Corporations convicted would be liable to a fine of up to $1,000,000. In addition to these penalties, EPFNA authorizes Ministry the authority to levy penalties for each passport or work permit withheld.
The changes described above (with the exception of the amendment to the ESA relating to the expansion of the statutory definition of “establishment”) are set to come into force upon Bill 79 receiving Royal Assent. Our team will keep you apprised regarding the status of Bill 79.
