New Amendments to the Occupational Health and Safety Act
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Bill 88, Working for Workers Act, 2022 (“Bill 88”) passed the first reading on February 28, 2022. If passed, it would introduce a number of employment law changes, including amendments to the Ontario Occupational Health and Safety Act (OHSA) as well as require employers to develop a written policy for electronic monitoring.

Proposed Amendments to the Occupational Health and Safety Act

Bill 88 amends OHSA to provide an additional obligation around naloxone kits and increased fines for directors and officers of corporations and other individuals.

Employer to Provide Naloxone Kits in Prescribed Circumstances

The amendments to OHSA will require employers to provide naloxone kits 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, or where the prescribed circumstances exist. The employer duties set out in section 25 of OHSA will still apply, as appropriate, with respect to the administration of naloxone in the workplace.

The employer will also be required to ensure that, at any time there are workers in the workplace, the naloxone kit is in the charge of a worker who works in the vicinity of the kit and who has received the prescribed training. This training includes training to recognize an opioid overdose, to administer naloxone and to acquaint the worker with any hazards related to the administration of naloxone.

An employer may not disclose any personal information that is reasonably necessary to comply with these requirements.

Increase to Maximum Fines

In addition to the naloxone requirements, OHSA will be amended in respect of fines applicable for convictions under the statute. The maximum fine is increased from $100,000 to $1,500,000 for directors or officers of corporations and to $500,000 for other individuals. A list of aggravating factors to be considered in determining a penalty is also added and the limitation period for instituting a prosecution is extended from one year to two years.

Aggravating Factors

The amendments provide that each of the following circumstances shall be considered an aggravating factor for the purposes of determining a penalty under these new provisions:

  1. The offence resulted in the death, serious injury or illness of one or more workers.
  2. The defendant committed the offence recklessly.
  3. The defendant disregarded an order of an inspector.
  4. The defendant was previously convicted of an offence under this or another Act.
  5. The defendant has a record of prior non-compliance with this Act or the regulations.
  6. The defendant lacks remorse.
  7. There is an element of moral blameworthiness to the defendant’s conduct.
  8. In committing the offence, the defendant was motivated by a desire to increase revenue or decrease costs.
  9. After the commission of the offence, the defendant,
    1. attempted to conceal the commission of the offence from the Ministry or other public authorities, or
    2. failed to co-operate with the Ministry or other public authorities.
  10. Any other circumstance that is prescribed as an aggravating factor.

Employers Required to Implement New Written Policy for Electronic Monitoring

Bill 88 would also introduce a new Part X1.1 of the Employment Standards Act, 2000, imposing a requirement on employers that employ 25 or more employees on January 1st of any year to have a written policy with respect to the electronic monitoring of employees. The policy must be in place before March 1st of that year.

Required Information

An Employer’s written policy must include:

  • Whether the employer monitors the employee electronically and if so:
  1. a description of how and in what circumstances the employer may electronically monitor employees, and
  2. the purposes for which information obtained through electronic monitoring may be used by the employer.
  • The date the policy was prepared and the date any changes were made to the policy.
  • Such other information as may be prescribed.

Employers would also be required to retain copies of every written electronic monitoring policy for three years after the policy ceases to be in effect.

Copy of Policy

An employer that is required under this section to have a written policy with respect to electronic monitoring shall provide a copy of the policy to each of the employer’s employees within 30 days from the day the employer is required to have the policy in place or, if an existing policy is changed, within 30 days of the changes being made. With respect to new employees, any employer that is required to have a written policy with respect to electronic monitoring must provide a copy of the policy to a new employee within 30 days of the day the employee becomes an employee of the employer or within 30 days from the day the employer is required to have the policy in place, whichever is later.

“Electronic monitoring” is not currently defined by Bill 88, but a definition may be introduced as the Bill continues through the legislative process. While the amendments specifically provide that nothing in the new provisions affects or limits an employer’s ability to use any of the information obtained through electronic monitoring, employers must still comply with all relevant privacy legislation when monitoring employees electronically.

Coming Into Force

If accepted into law, Bill 88 would come into force on the day it receives Royal Assent.

Contact the Employment Lawyers at Baker & Company in Toronto for Assistance with Employee Policies

The skilled employment lawyers at Baker & Company will continue to monitor the Bill as it proceeds through the House and will update if and when it receives Royal Assent and advise as to how the Bill may impact an employer’s obligations. Our team has extensive experience advising employers with respect to workplace health and safety issues and employer obligations.

We regularly draft new policies, review and update existing policies, and ensure all relevant manuals comply with relevant legislation. We protect our clients’ interests, help shield them from liability, and ensure they meet their legal obligations. To speak with a lawyer, contact us online or by phone at 416-777-0100.

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