This fall, we saw many updates to legislation in Ontario, and just when employers thought they would catch a break in keeping up with new additions, the Government of Ontario announced a flurry of additional changes before the winter break. This PH Report summarizes more announced (and anticipated) changes coming to an Ontario workplace near you.
Potential Pay Transparency Legislation
Following in the footsteps of British Columbia, the Ontario government announced that it will soon introduce legislation requiring employers to include the expected salary range in publicly available job postings. The government’s stated goal of introducing the legislation is to help close the gender pay gap and allow employers to find (and retain) suitable candidates quickly.[i]
A Ban on Requiring Canadian Work Experience
The government is introducing legislation that will prohibit having Canadian work experience as a requirement in job postings or application forms. The legislation seeks to support internationally-trained immigrants in finding jobs in the fields of work they studied in prior to coming to Canada. Ontario already has legislation, part of which is coming into effect next month, that bans certain regulated professions from requiring Canadian work experience in over 30 occupations.
Transparency Around the Use of AI in Hiring
The same legislation that would require employers to include salary ranges in job postings would also require employers to disclose whether artificial intelligence (“AI”) is being used in their hiring processes. The government describes this as a “first of its kind” legislation in Canada, being introduced in the face of increasing AI use in the province. The legislation is aimed at addressing ethical, privacy, and other concerns around the use of AI during recruitment and hiring, and the potential for technological biases impacting marginalized workers.
Protections for Remote Employees
The definition of an employer’s “establishment” with respect to termination and severance of employment now includes the private residence of an employee that works from home if the employee exclusively performs work from that location. Previously, these employees were not included when determining whether a group termination met the “mass termination” threshold. With the growing rise in remote and hybrid work, this means employers cannot avoid additional mass termination obligations because their workers are not tied to a single establishment.
Enhanced Leave for Reservists
Military reservists are now eligible for the reservist leave in the Employment Standards Act, 2000 (the “ESA”) after two months of employment, instead of the three months of service that was initially required. In addition, reservists now qualify for the job-protected leave to recover from physical or mental illnesses as a result of deployment or training in the Canadian Forces.
Consultations on Non-Disclosure Agreements
In an effort to end workplace misconduct and increase accountability, the government says that it will undertake consultations on prohibiting the use of Non-Disclosure Agreements (“NDAs”) in the settlement of workplace sexual harassment, misconduct, or violence complaints. Similar prohibitions have already been in force since December 20022 for private and public post-secondary institutions in Ontario. Other jurisdictions have already banned the use of NDAs, particularly in the wake of #MeToo, as we wrote about in November 2019.
Licensing Requirements for Recruiters
The previously announced licensing requirement for temporary help agencies (“THAs”) and recruiters operating in Ontario was recently postponed from January 1 to July 1, 2024. Those businesses must apply for a licence to operate before the deadline, in order to operate at all. THAs will be required to renew their licence each year and cannot operate without a valid licence going forward. For more information, visit our updated blog from July to learn about the requirements imposed on temporary help agencies and recruiters. But, according to Labour Minister David Piccini, there may be further changes to the requirements to respond to concerns raised by THAs and recruiters.
Additional Changes and Proposals
The government has also implemented or announced the following legislative updates and potential updates:
Increased maximum fines for a corporation convicted under the Occupational Health and Safety Act, effective October 26, 2023. This change means Ontario now has the highest maximum fines for corporations convicted of an offence in Canada.
Increased government regulation-making authority to prescribe when and what information must be provided to prospective and current employees in writing. The government has not prescribed any such information at this time. This amendment was effective October 26, 2023 and follows in the footsteps of recent updates to the Canada Labour Code.
Requirement to report how companies address and prevent forced and child labour in their supply chains. This requirement derives from Canada’s new modern slavery legislation, which applies to Canadian government institutions and larger private businesses. The legislation comes into force on January 1, 2024 and requires reporting about steps taken to prevent the use of forced or child labour and details about supply chain practices.
Increases to Workplace Safety and Insurance Board (“WSIB”) benefits above the annual rate of inflation. The government has announced it will soon introduce legislation to this effect.
Consultations on a new job-protected leave for critical illnesses. The government will be undertaking consultations to create a new job-protected 26-week leave for critical illnesses (like cancer) to match the length of the Federal Employment Insurance sickness benefits.
The government has begun making its list and checking it twice before commencing the winter break. As such, employers should not be surprised if additional announcements are made. In the meantime, the lawyers at Piccolo Heath LLP can assist employers if the flurry of changes evolve into a storm.
[i] Similar legislation was passed by a prior government in 2018 but it never came into force as a result of a change in government (which is the government that is now introducing this new pay transparency legislation).