Bill 88: More Changes to Employment Related Legislation

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2022 has been a busy year already for employers and policy drafters, but more changes are on the way. Bill 88, also known as the Working for Workers Act, 2022, was passed on April 11, 2022 and prescribes a number of changes to employment related legislation, including the Employment Standards Act, 2000 (the “ESA“) and the Occupational Health and Safety Act (the “OHSA“). The Bill also introduces an entirely new piece of legislation, the Digital Platform Workers’ Rights Act, 2022 (the “DPWRA“), which establishes rights and protections for all workers (not just employees) who perform “digital platform work”.

We have summarized the key changes below.

Amendments to the ESA

Requirement for Electronic Monitoring Policy

One of the new requirements introduced by Bill 88 is that all employers with 25 or more employees as of January 1 of any given year will need to implement a written policy with respect to the Electronic Monitoring of Employees by March 1 of that year.

This written policy must include the following information:

  • Whether the employer electronically monitors employees and if so,
    • a description of how and in what circumstances the employer may electronically 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 any changes were made to the policy
  • Such other information as may be prescribed.

Importantly, this policy does not impact or otherwise limit an employer’s ability to monitor its employees or use information collected via electronic monitoring. We have been advising employers that they should let their staff know if they will be monitored well before this legislation was introduced, and it is likely this will not be a significant change for many businesses. We anticipate receiving further guidance from the Ministry of Labour on preparing these policies in the near future.

A copy of this policy must be provided to all employees within 30 days of the policy being implemented, or whenever changes are implemented to the policy. Impacted employers will have until October 11, 2022 to prepare this policy for 2022.

Exemption of Business and Information Technology Consultants

As of January 1, 2023, the ESA will not apply to business and information technology consults where specific criteria are met, including:

  • where the consultant provides services through a corporation of which they are a director or shareholder or via a sole proprietorship where the consultant is the sole proprietor, and 
  • where there is an agreement in place that specifies when the consultant will be paid at a rate that must be equal or greater than $60 per hour.

A 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.

An 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.

Changes to Reservist Leave

Effective April 11, 2022, an employee will be entitled to take Reservist Leave if they are participating in Canadian Armed Forces military skills training, and will be eligible for the leave after completing three months of consecutive service with an employer (reduced from six months).

Amendments to the OHSA

Naloxone Kits

Where an employer is aware, or ought reasonably to be aware, that there may be a risk of a worker having an opioid overdose, the employer must provide naloxone kits in the workplace. The naloxone kit must be in the charge of a worker who works in the vicinity of the kit and who has received certain training, including training on: recognizing an opioid overdose, administering naloxone and the hazards related to the administration of same. 

This requirement will come into force at a future date upon proclamation.

Increases to Fines and Limitation Period

As of July 1, 2022, fines for contravention of the OHSA will be increased from $100,000.00 to $1,500,000.00 for directors or officers of corporations, and to $500,000.00 for other individuals. The amendments also include a list of aggravating factors to be considered when assessing the appropriate penalty. 

The limitation period for instituting a prosecution under the OHSA has also been extended from one year to two years.

Establishment of the DPWRA

The purpose of the DPWRA is to establish rights for workers who perform “digital platform work”. This is defined as 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. The rights created by the DPWRA include:

  • 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.

The DPWRA is not yet in force, but any employer who could be considered a digital platform operator will want to start preparing for these upcoming changes.

Takeaways

There have been many changes recently within the sphere of employment law. If you aren’t sure what your obligations are as an employer, or if your rights as an employee will be impacted, please reach out to us.

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Stuart and others on the team at Rudner Law are frequent contributors to the following sites: 

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