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, passing the Working for Workers Five Act, 2024 on October 28, 2024 (“Bill 190”), finalizing the Working for Workers Four Act, 2024 (“Bill 149”) (passed in March 2024), and enacting a new ESA regulation stemming from the Working for Workers Act, 2023.
This PH Report will outline some of these key changes.
Updates to the ESA
A. Job Postings
The Ontario government introduced a new regulation detailing job posting requirements under Bill 190 and Bill 149. The job posting requirements apply to employers with at least 25 employees.
The Requirements
Bill 190: Publicly Advertised Job Postings[i] must state if the position is for an existing job vacancy.
Bill 149:
Publicly Advertised Job Postings must:
Employers must retain Publicly Advertised Job Postings and application forms for three years from when public access is removed; and
Publicly Advertised Job Postings or applications cannot require Canadian experience.
Effective Date
January 1, 2026.
B. The Duty to Inform Interviewees and Retain Interview Information
The Requirements – Bill 190
Employers (with at least 25 employees) conducting an Interview[iv] must tell applicants whether a hiring decision has been made within 45 days of their last interview.
Employers must retain copies of the information provided to the applicant after their interview for three years.
Effective Date:
January 1, 2026.
C. Sick Notes
The Requirement – Bill 190
Employers are prohibited 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.
Effective Date:
October 28, 2024. This provision is currently in force.
D. Agreement on Vacation Pay
The Requirement – Bill 149
Employers that pay vacation pay in a way other than by providing a lump sum payment before an employee’s vacation must enter into a written agreement with an employee outlining how the employee will receive vacation pay.
Effective Date:
June 21, 2024. This provision is currently in force.
E. Direct Deposit Account Requirements
The Requirement – Bill 149
Employees must select the account used for the direct deposit of their wages. This requirement is in addition to other pre-existing requirements, including that the account be in the employee’s name, and that 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.
Effective Date:
June 21, 2024. This provision is currently in force.
F. Increased Fines
The Requirement – Bill 190
The maximum fine for individuals convicted of contravening the ESA or its regulations or who have failed to comply with an order or requirement under the ESA is increased from $50,000 to $100,000.
Effective Date:
·October 28, 2024. These provisions are currently in force.
Updates to the OHSA
A. Amended Definitions and Application
The Requirement – Bill 190
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.
Effective Date:
October 28, 2024. These provisions are currently in force.
B. The Permissibility of Electronic Meetings and Documents
The Requirement – Bill 190
Joint health and safety committee (“JHSC”) meetings can be held virtually or in-person.
Required documents and postings under the OHSA (e.g. the OHSA, health and safety policy, 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.
Effective Date:
October 28, 2024. These provisions are currently in force.
***
Throwback: The New and Anticipated Regulation Stemming from the Working for Workers Act, 2023
On November 29, 2024, the government enacted a new regulation stemming from the Working for Workers Act, 2023, which passed in October 2023. This legislation allowed the government to prescribe “information that must be provided to an employee or prospective employee, in writing, and when the information must be provided”.
The Requirements
Employers with at least 25 employers must provide the following information to employees in writing before the employee’s first day of work, or as soon as reasonably possible:
The legal name of the employer (and any operating or business name of the employer, if different from the legal name);
The employer’s address, telephone number and one or more contact names;
A general description of where the employee will initially perform work;
The employee’s starting hourly or other wage rate or commission, as applicable;
The pay period and pay day established by the employer; and
A general description of the employee’s initial anticipated hours of work.
Effective Date
July 1, 2025.
A New Addition to the Working for Workers Legislative Series – Round #6!!!
On November 27, 2024, the Ontario government announced the introduction of the Working for Workers Six Act, 2024 (“Bill 229”). On December 19, the legislation quietly passed. Bill 229 creates:
a new 16-week job-protected parental leave under the ESA for adoptive parents and parents through surrogacy;
a new 27-week long-term illness leave for employees with certain serious medical conditions (including chronic or episodic conditions) who are unable to work; and
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
We now have visibility on the effective dates of the provisions that have passed above. As such, consider if your practices require an update based on any of the new requirements described in this PH Report. If they do, consider how long it will take your business to roll out such changes to ensure that you’re in compliance with the requirements when they take effect.
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.
[i] “Publicly Advertised Job Postings” is defined as an external job posting that an employer or a person acting on behalf of an employer advertises to the general public in any manner but does not include,
(a) a general recruitment campaign that does not advertise a specific position,
(b) a general help wanted sign that does not advertise a specific position,
(c) a posting for a position that is restricted to existing employees of the employer, or
(d) a posting for a position for which work is to be,
(i) performed outside Ontario, or
(ii) performed outside Ontario and in Ontario and the work performed outside Ontario is not a continuation of work performed in Ontario.
[ii] “Compensation” is defined as wages.
[iii] “Artificial Intelligence” is defined as a machine-based system that, for explicit or implicit objectives, infers from the input it receives in order to generate outputs such as predictions, content, recommendations or decisions that can influence physical or virtual environments.
[iv] “Interview” means a meeting in person or a meeting using technology, including but not limited to teleconference and videoconference technology, between an applicant who has applied to a publicly advertised job posting and an employer or a person acting on behalf of an employer where questions are asked and answers are given to assess the applicant’s suitability for the position, but does not include preliminary screening before the selection of applicants for such a meeting.