This past summer, we wrote about some of the key amendments to the Employment Standards Act, 2000 (“ESA”) and the Occupational Health and Safety Act (“OHSA”) triggered by the introduction of one bill, and the passing of another. Now, the Ontario government is * putting a bow * on loose ends just in time for the holiday season. The government passed the Working for Workers Five Act, 2024 on October 28, 2024 (“Bill 190”), after passing the Working for Workers Four Act, 2024 (“Bill 149”) earlier in March.
This PH Report will briefly outline some of the key changes to the ESA and OHSA in 2024 and when these changes take effect, if they have not already. It will also briefly highlight some of the provisions in the brand-new Working for Workers Six Act, 2024, announced on November 27, 2024.
Updates to the ESA
Job Postings
As required by Bill 190, public job postings must include a statement disclosing whether or not the position is for an existing job vacancy.
In addition, Bill 149 requires employers to:
include the expected compensation, or the range of expected compensation, in the job posting;
retain publicly advertised job postings for three years after the public can no longer access them; and
disclose in the job posting whether artificial intelligence is used to screen, assess, or select applicants.
Bill 149 also prohibits employers from including a requirement related to Canadian experience in the posting or associated application.
Key date: TBD. The provisions will come into force on proclamation in the future.
The Duty to Inform Interviewees and Retain Interview Information
Bill 190 also requires employers interviewing applicants for a publicly posted job to provide applicants with prescribed information within a prescribed period of time.
Additionally, Bill 190 requires employers to retain prescribed information provided to an applicant during an interview for three years after the information is provided to the applicant.
Key date: TBD. The provision will come into force on proclamation in the future, presumably with details about the prescribed information and the time period, which are yet to be identified.
Sick Notes
Bill 190 prohibits employers from requiring an employee to provide a certificate from a qualified health practitioner as evidence of the employee’s entitlement to the unpaid sick leave of absence in the ESA (i.e. three days).
Employers can still require an employee to provide “evidence reasonable in the circumstances” that the employee is entitled to the leave (e.g. an employee attestation) for the ESA-protected days and can request a medical note for any days beyond these days.
Key date: Now. This provision went into force on October 28, 2024.
Agreement on Vacation Pay
Bill 149 requires an employer that pays vacation pay in a way other than by providing a lump sum payment before an employee’s vacation to enter into a written agreement with an employee outlining how the employee will receive vacation pay.
For example, while many employers simply continue salary during vacation time, such an arrangement now requires an employee’s agreement.
Key date: Now. This provision went into force on June 21, 2024.
Direct Deposit Account Requirements
Bill 149 adds a requirement for employees to select the account used for the direct deposit of their wages, in addition to the pre-existing requirements that the account be in the employee’s name and no person, other than the employee or a person they authorize, has access to the account.
For clarity, the account can be a joint account, so long as the employee is named on the account.
Key date: Now. This provision went into force on June 21, 2024.
Increased Fines
Bill 190 increases the maximum fines for individuals convicted of contravening the ESA or its regulations, or who have failed to comply with an order or requirement under the ESA, from $50,000 to $100,000.
Key date: Now. This provision went into force on in force on October 28, 2024.
Updates to the OHSA
Amended Definitions and Application
Bill 190 facilitates the following changes to the OHSA:
The definitions of “workplace harassment” and “workplace sexual harassment” are amended to include conduct occurring in the workplace “virtually through the use of information and communications technology”.
The OHSA’s application extends to telework performed in or about a private residence.
Key date: Now. These provisions went into force on October 28, 2024.
The Permissibility of Electronic Meetings and Documents
Bill 190 also permits joint health and safety committee (“JHSC”) meetings to be held virtually, in addition to in-person.
Additionally, required documents and postings under the OHSA, such as the OHSA itself, the employer’s health and safety policy, and the names and work locations of JHSC members, may now be posted online, so long as:
the employer directs workers on where and how to access the information; and
the information is posted in an electronic format that can be readily accessed by workers in the workplace.
Key date: Now. These provisions went into force on October 28, 2024.
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A New Addition to the Working for Workers Legislative Series
On November 27, 2024, the Ontario government announced the introduction of the Working for Workers Six Act, 2024. While the text of the Bill is not yet available, according to the announcement, the legislation, if passed, would:
create a new job-protected parental leave under the ESA for adoptive parents and parents through surrogacy;
create a new 27-week long-term illness leave for employees with certain serious medical conditions who are unable to work; and
impose a mandatory minimum fine of $500,000 for a corporation convicted of a repeat offence under the OHSA that resulted in the death or serious injury of at least one worker within a two-year period, among other things.
Takeaways
Of the provisions above that have passed but have not already taken effect, we may see announcements before year-end about the proclamation dates. As such, if your practices require an update based on any of the new requirements above, consider implementing those changes before year-end.
Moreover, we anticipate that the official text of the Working for Workers Six Act, 2024 will be released shortly, which will provide further details on the new provisions. However, it’s unlikely that the legislation will pass in the next two weeks, before the legislature commences its winter break on December 13.
As we approach a new year, employers are reminded to review their policies to ensure they’re current and address the new requirements. Employers should also count the number of employees they have to determine if they have reached a threshold that triggers the implementation of new policies that may have not previously been required (see our previous blogs on the disconnecting from work policy and the electronic monitoring policy).
Please reach out to a member of our team for any questions or for further details on the above.