Introduced on October 25, 2021, the goal of this legislation is to create a healthy work/life balance, and better support and protect workers in Ontario. Employers covered by the Employment Standards Act (ESA) are affected by these updates to legislation.

1. Right to Disconnect

Written policy on disconnecting from work | Your guide to the Employment Standards Act | ontario.ca

Amending the Employment Standards Act on December 2, 2021, employers with twenty-five (25) or more workers are required to have a policy in place on disconnecting from work and provide a copy of this written policy to all workers. This written policy was to be in place by June 2, 2022. Beginning in 2023, employers who employ twenty-five (25) or more workers are required to have this written policy in place before March 1st of that year.

The ESA defines “disconnecting from work” as:
“Not engaging in work-related communications, including emails, telephone calls, video calls or sending or reviewing other messages, to be free from the performance of work.”

2. Non-Compete Agreements

Non-compete agreements | Your guide to the Employment Standards Act | ontario.ca

Employers are now prohibited from entering into contracts or other agreements with an employee that include a non-compete agreement which is defined as:

“An agreement, or any part of an agreement, between an employer and employee that prohibits the employee from engaging in any business, work, occupation, profession, project or other activity that is in competition with the employer’s business, after the employment relationship between the employee and the employer ends.”

There are some exceptions:

• The sale of a business or part of a business
• Does not apply to executives:
  “Any person who holds the office of chief executive officer, president, chief administrative officer, chief operating officer, chief financial officer, chief information officer, chief legal officer, chief human resources officer or chief corporate development officer, or any other chief executive position.”

3. Licensing Requirements

https://www.ontario.ca/laws/statute/s21035

The following licences are issued under Bill 27:

• Temporary Help Agencies

In order to operate a temporary Help Agency, a license is required for that purpose.

Note:
Bill 27 states: “No client shall knowingly engage or use the services of a temporary help agency unless the person who operates the temporary help agency holds a licence for that purpose as required under subsection (1).”

• Recruiters

Recruiters are required to have a license and are prohibited from charging fees to a foreign national for their recruitment or employment services.

Note:
Bill 27 states that an applicant applying for a license to act as a recruiter must provide:
(A)  a statement that the applicant is aware that subsection 7 (1) of the Employment Protection for Foreign Nationals Act, 2009 prohibits a person who acts as a recruiter in connection with the employment of a foreign national from directly or indirectly charging the foreign national a fee for any service, good or benefit provided to the foreign national

4. Canadian Experience Requirement

To make it easier for internationally trained workers to practice in their trained professions, Bill 27 amends the Fair Access to Regulated Professions and Compulsory Trades Act, 2006, removing barriers to allow the experiences internationally trained workers have gained abroad to be used towards employment in Canada, and Canadian employers can no longer only require applicants to have experience gained with Canadian-based companies.

Note:
Bill 27 states:
Canadian experience
10.2 (1) A regulated profession shall not require as a qualification for registration that a person’s experience be Canadian experience, unless an exemption from the prohibition is granted by the Minister for the purposes of public health and safety in accordance with the regulations.

5. Washroom Access for Delivery Workers

Bill 27 amends the Occupational Health & Safety Act (OHSA) to allow delivery workers and truck drivers to have access to the washroom at the company they deliver to while on the job (excluding private residences).

Note:
Bill 27 states:
Duties of owners — washroom access
29.1 (1) Subject to subsection (2), the owner of a workplace shall ensure that access to a washroom is provided, on request, to a worker who is present at the workplace to deliver anything to the workplace, or to collect anything from the workplace for delivery elsewhere.

https://www.ontario.ca/laws/statute/s22007

Bill 88, referred to as the Working for Workers Act 2022, received Royal Assent on April 11, 2022 and amends the Employment Standards Act (ESA) and the Occupational Health & Safety Act (OHSA), placing new responsibilities on employers.

Digital Platform Workers’ Rights Act, 2022
https://www.ola.org/en/legislative-business/bills/parliament-42/session-2/bill-88

The purpose of the Act is to establish rights for workers who provide services through the use of digital platforms.

Digital Platform work is defined to mean:
“The provision of for payment 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.”

These rights are:

• The right to information (section 7).
• The right to a recurring pay period and pay day (section 8).
• The right to minimum wage (section 9).
• The right to amounts earned by the worker and to tips and other gratuities (section 10).
• The right to notice of removal from an operator’s digital platform (section 11).
• The right to resolve digital platform work-related disputes in Ontario (section 12).
• The right to be free from reprisal (section 13).

Note:
Bill 88 states:
Application
3 (1) Subject to subsection (2), the worker rights set out in this Act apply with respect to a worker if,
(a) the worker’s work assignment is to be performed in Ontario; or
(b) the worker’s work assignment is to be performed in Ontario and outside Ontario but the work performed outside Ontario is a continuation of the work performed in Ontario.

The Act also sets out rules, processes and requirements with respect to:

• record keeping
• director liability
• complaints and enforcement
• collections, and
• offences and prosecutions.

Employment Standards Act, 2000

A. Bill 88 amends the ESA to exempt certain business consultants and information technology consultants. As per the Act:

1. Section 3 of the Act is amended to provide that the Act does not apply to certain business and information technology consultants.

Business Consultant is defined as, “an individual who provides advice or services to a business or organization in respect of its performance, including advice or services in respect of the operations, profitability, management, structure, processes, finances, accounting, procurements, human resources, environmental impacts, marketing, risk management, compliance or strategy of the business or organization; (conseiller commercial).”

Information Technology Consultant is defined as, “an individual who provides advice or services to a business or organization in respect of its information technology systems, including advice about or services in respect of planning, designing, analyzing, documenting, configuring, developing, testing and installing the business or organization’s information technology systems; (“conseiller en technologie de l’information)”

The Act also states that Business Consultants and Information Technology Consultants, as defined above, are only exempt from the ESA if the following requirements are met:

1. The business consultant or information technology consultant provides services through,

i. a corporation of which the consultant is either a director or a shareholder who is a party to a unanimous shareholder agreement, or

ii. a sole proprietorship of which the consultant is the sole proprietor, if the services are provided under a business name of the sole proprietorship that is registered under the Business Names Act.

2. There is an agreement for the consultant’s services that sets out when the consultant will be paid and the amount the consultant will be paid, which must be equal to or greater than $60 per hour, excluding bonuses, commissions, expenses and travelling allowances and benefits, or such other amount as may be prescribed, and must be expressed as an hourly rate.

3. The consultant is paid the amount set out in the agreement as required by paragraph 2.

4. Such other requirements as may be prescribed.

These new exemptions come into effect on January 1, 2023.

B. Bill 88 also amends the ESA to include a “Retention of Electronic Policy Monitoring” requiring employers to have a written policy in place, and states:

1) An employer that, on January 1 of any year, employs 25 or more employees shall, before March 1 of that year, ensure it has a written policy in place for all employees with respect to electronic monitoring of employees.

2) The written policy with respect to electronic monitoring must contain the following information:

1.  Whether the employer electronically monitors employees and if so,

i. a description of how and in what circumstances the employer may electronically monitor employees, and

ii. the purposes for which information obtained through electronic monitoring may be used by the employer.

2.  The date the policy was prepared and the date any changes were made to the policy.
3.  Such other information as may be prescribed.

Copy of Policy

3) 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.

Note: This requirement also applies to new employees and assignment employees through a temporary help agency.

C. Bill 88 amends the ESA to expand on Reservist Leave.

• Workers in Ontario are now eligible for job-protected leaves of absence if unable to work because they are participating in Canadian Armed Forces Military Skills Training.
• Workers are now eligible under the ESA after being employed by the employer for three (3) consecutive months. Previous requirement was six (6) months.

Occupational Health and Safety Act (OHSA)
Naloxone Kits

Bill 88 amends the OHSA to require certain employers to have naloxone kits available in the workplace. Specifically:

Naloxone Kits
25.2
1) Where an 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 shall,

(a)  provide and maintain in good condition a naloxone kit in that workplace; and

(b)  comply with any other prescribed requirements respecting the provision and maintenance of naloxone kits and the training referred to in subsection (3).

Location of Kit
2) The employer shall 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 training described in subsection (3).

Training
3) The training shall include training to recognize an opioid overdose, to administer naloxone and to acquaint the worker with any hazards related to the administration of naloxone, and shall meet such other requirements as may be prescribed.

Limit on Disclosure
4) No employer shall disclose to any person more personal information than is reasonably necessary to comply with this section.

Employer Duties
5) For greater certainty, the employer duties set out in section 25 apply, as appropriate, with respect to the administration of naloxone in the workplace.