Creating a Better and More Competitive Work Environment in Ontario - Proposed Amendments to the Employment Standards Act
UPDATE – Bill 27 received Royal Assent on December 2, 2021. Except as noted below, the Working for Workers Act, 2021 is now in force.
Ontario employers should review the changes noted and updated in our PH Report, below, and diarize the following important dates and deadlines.
October 25, 2021 – The prohibition against non-compete agreements is deemed to have come into effect on October 25, 2021.
June 2, 2022 – Deadline for Ontario businesses that employ 25 or more employees as of January 1, 2022 to have a written Disconnection Policy in place and provided to their employees.
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On October 25, 2021 the Ontario government introduced new legislation that Monte McNaughton. Minister of Labour Training and Skills Development, said would “make the province the best place for people to work, live and raise a family”. The proposed legislation has already passed First Reading and encompasses various proposed changes announced by Minister McNaughton and the recommendations of the Ontario Workforce Recovery Advisory Committee, which he established in June.
If passed, Bill 27, the Working for Workers Act, 2021 would make significant changes to employer obligations under various statutes, including the Employment Standards Act, 2000 (the “ESA”).
KEY CHANGES:
Disconnecting from Work
Bill 27 imposes a requirement to have a written policy with respect to disconnecting from work on all employers that employ 25 or more employees as of January 1 in any year and such policy must be in place by no later than March 1st of that year. Please see the note, above, for the deadline applicable to Ontario employers with 25 or more employees as of January 1, 2022. While “disconnecting from work” is a defined term which means “not engaging in work-related communications, including emails, telephone calls, video calls or the sending or reviewing of other messages so as to be free from the performance of work”, other requirements for the policy have not been set out and may be introduced by the Ministry of Labour at a later date. At a minimum, we know that a copy of the policy is to be provided to each existing employee within 30 days of it being drafted, and to all new employees within 30 days of their start date. Employers are required to retain copies of every written policy on disconnecting from work as required by the Act for a period of three (3) years after the policy ceases to be in effect.
Talk about the right to disconnect is nothing new. Jennifer Heath wrote about it in her 2018 blog found here. A “right to disconnect” law was also introduced in 2016 by the French government. That said, the issue came back to the forefront during the COVID-19 pandemic when the majority of Canadians moved to remote work, blurring the lines between when an employee was “at work” and “not at work” and increasing concerns about work-life balance.
While the changes proposed in Bill 27 will impact only Ontario employees governed by the ESA, federally-regulated employers should also take note given the Federal government’s establishment of the Right to Disconnect Advisory Committee in October of 2020.
Prohibition of Non-Compete Agreements
Perhaps the most significant proposal is that for the new Part XV.1 of the ESA. If passed, it would prohibit employers from entering into contracts with an employee that are, or include, a non-compete agreement. Any non-compete clause or term included in any such agreement would, under Bill 27, be void.
An important exception to this prohibition is expressly carved out. In the event of a sale (including a lease) of all or part of a business where, after the sale, the seller becomes an employee of the purchaser, the parties will continue to be permitted to enter into a non-compete agreement which bars the seller from engaging in business, work, occupation, profession, project or other activity in competition with the business after the sale.
Another important exception are employment agreements for any employee who is an “executive”. For the purposes of the Act, “executive” is defined as anyone holding the office of chief executive officer, president, chief administrative officer, chief operating officer, or holds any other chief executive position.
Licensing Temporary Health Agencies and Recruiters
Similar to licensing requirements introduced in Quebec in February 2020, Bill 27 mandates temporary help agencies and recruiters to hold a license as a condition to operate in the province. License applications are to be made to the Director of Employment Standards and include providing not only the name (including operating name) and address(es) of the applicant (both in and outside Ontario), but also the name and address of each officer, director and/or partner of the company. Any license issued would be for a period of one (1) year and may be renewed prior to the expiration, subject to an earlier revocation, suspension or cancellation by the Director.
In conjunction with this new process, the Ontario Government will establish and maintain a public directory which identifies each person/company that both holds a valid license and/or has had its license revoked or suspended.
Removing Work Experience Barriers for Foreign-Trained Workers
Bill 27 seeks to eliminate long-standing barriers for individuals who have international training to allow them the opportunity to obtain licenses and employment in certain regulated professions and trades. Key among the proposed changes are the elimination of a requirement that the worker have Canadian experience, and providing information and assistance to foreign-trained workers regarding registration and application requirements.
Regulated professions would continue to have to comply with English or French language proficiency testing requirements.
WSIB Remittances
UPDATE – These provisions are not yet in force and are subject to further proclamation.
In an effort to provide support to businesses that continue to cope with the impacts of the COVID-19 pandemic, Bill 27 would, if passed, allow for the WSIB to redistribute a significant portion of its current reserve to “safe” Schedule 1 employers. The proposed changes to the Workplace Safety and Insurance Act, 1997 in Bill 27 are in addition to other changes announced by Minister McNaughton on October 6th to cut WSIB premiums and streamline employer remittances.
Requiring Washroom Facilities for Delivery Workers
UPDATE – These changes to the OHSA are not yet in force and are subject to further proclamation.
In addition to the proposed changes to the ESA, Bill 27 includes one proposed change to the Occupational Health and Safety Act calling for owners of a workplace to ensure a washroom is provided, on request, to any worker who attends to deliver to and/or collect anything from the workplace.
Exceptions are made where:
the workplaces can only be accessed through a dwelling;
providing washroom access would be unreasonable for reasons relating to the health and safety of any person at the workplace; and
access would be impractical having regard to circumstances including the nature, the type of work carried out at, and the conditions of the workplace.
Not Yet in Effect
Again, some of these changes are proposed only and not yet in effect. We will continue to monitor Bill 27 as it proceeds through the various stages of discussion and committee review and provide updates on amendments to these proposals and the status of the Bill as they arise.
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In the meantime, if you have any questions, please don’t hesitate to contact one of our lawyers.
New Guidance on ROE Codes
Employers take note – Service Canada has provided new guidance on how to code ROEs for employees who are on leave/terminated because of failure to comply with COVID-19 vaccine policies:
When the employee doesn’t report to work because they refuse to comply with your mandatory COVID-19 vaccination policy, use code E (quit) or code N (leave of absence).
When you suspend or terminate an employee for not complying with your mandatory COVID-19 vaccination policy, use code M (dismissal).
If you use these codes, Service Canada may contact you with questions about your policy.
It remains to be seen whether employees who are terminated, or on leave, for non-compliance will qualify for Employment Insurance. Given the questions listed, Service Canada may do a case-by-case assessment.
Ministry of Labour - What’s New
Check out the MOL’s recent newsletter, which includes the following: