Changes to Ontario Employment Law under the Working for Workers Act
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Bill 88, the Working for Workers Act, 2022, received Royal Assent on April 11, 2022. This law includes several amendments to Ontario’s Employment Standards Act, including the creation of employee electronic monitoring policies, enhanced rights for gig workers, and occupational health and safety protections.

The new employer obligations created by Bill 88 are a continuation of the changes to Ontario’s employment landscape implemented by the passing of the Working for Workers Act, 2021 in late 2021.

Mandatory Electronic Monitoring Policies

Bill 88’s amendments to the Employment Standards Act include the requirement for employers with 25 or more employees to create an electronic monitoring policy. We previously discussed these policies in our blog.

Employers who have or hit the 25 employee threshold by January 1 of each year must have this policy in place by March 1 of the same year. The electronic monitoring policy must address the following:

  • whether the employer electronically monitors employees. If it does, the policy must then include:
      • a description of how and in what circumstances the employer may monitor employees; and
      • the purposes for which information obtained through electronic monitoring may be used by the employer;
  • the date the policy was prepared and the date that any changes are made to the policy; and
  • any other information that may be prescribed by the Employment Standards Act and its regulations.

Employers that had 25 or more employees as of January 25, 2022, have until October 11, 2022, to comply with this new requirement.

Digital Platform Workers’ Rights Act Enacted

The passage of Bill 88 has created the new Digital Platform Workers’ Rights Act to establish rights for workers who perform digital platform work. This Act is not yet in effect. Instead, it will come into force on a day to be named by the government.

Under the Digital Platform Workers’ Rights Act, “digital platform” work is defined as the provision of paid “ride share, delivery, courier, or other prescribed services, by workers who are offered work assignments by an operator through the use of a digital platform”.

Once in effect, this new legislation provides digital platform workers with the following rights:

  • The right to information;
  • The right to a recurring pay period and pay day;
  • The right to minimum wage;
  • The right to amounts earned by the worker and to tips and other gratuities;
  • The right to notice of removal from an operator’s digital platform;
  • The right to resolve digital platform work-related disputes in Ontario; and
  • The right to be free from reprisal.

New Consultant Exemptions Under the Employment Standards Act

Effective January 1, 2023, individuals who meet the qualifications of specific business and information technology (IT) consultants are now exempt from the Employment Standards Act.

Business Consultants

Under the newly-amended Employment Standards Act, a “business consultant” is an individual who provides advice or services to a business or organization in respect of its performance, including:

  • operations
  • profitability
  • management
  • structure
  • processes
  • finances
  • accounting
  • procurements
  • human resources
  • environmental impacts
  • marketing
  • risk management
  • compliance
  • strategy

Information Technology Consultants

For the purposes of exclusion from the Employment Standards Act (as of January 1, 2023), an “information technology consultant” means an individual who provides advice or services to a business or organization related to its IT systems, including:

  • plans
  • design
  • analysis
  • documentation
  • configuration
  • development
  • testing
  • installation

Changes to Reservist Leave

The Working for Workers Act, 2022, added new changes to reservist leave under the Employment Standards Act. An employee participating in Canadian Armed Forces military skills training is now entitled to reservist leave. Employees are now entitled to reservist leave after being employed with their employer for three consecutive months.

Amendments to the Occupational Health and Safety Act (OHSA)

In a previous blog, we summarized changes to the Occupational Health and Safety Act (OSHA) concerning the availability of naloxone kits. The Working for Workers Act, 2022 amends the OSHA by requiring employers to provide naloxone kits and comply with related requirements if the employer becomes aware, or ought reasonably to be aware, that there may be a risk of a worker having an opioid overdose at a workplace where that worker performs work for the employer. This change will come into force on a day to be named by the government.

Additional changes include an extended limitation period for prosecuting offences under the OSHA, from one to two years. The maximum fines faced by directors and officers have been raised from $100,000 to $1.5 million and $500,000 for other individuals. A list of aggravating factors will be used to determine the appropriate penalty in each case. Many of these changes come into force on July 1, 2022, although some new provisions regarding the service of OSHA orders and decisions are already in effect as of April 11.

Amendments to the Fair Access to Regulated Professions and Compulsory Trades Act

Bill 88, the Working for Workers Act, 2022, also sets out new changes to the Fair Access to Regulated Professions and Compulsory Trades Act, 2006. These amendments establish timelines within which regulated professions must respond to domestic labour mobility applications unless an exemption is granted to these timelines. These timelines came into effect on April 11, 2022.

Contact the Employment Lawyers at Baker & Company in Toronto for Assistance with Employment Law Issues

The knowledgeable employment lawyers at Baker & Company can help your company ensure it has proper measures to comply with the changes created by the Working for Workers Act, 2022. Our team has extensive experience drafting employment policies that mitigate legal and financial risks for a wide variety of employers. To speak with a lawyer about Bill 88 or any other employment law matter, please call 416-777-0100 or contact us online.

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