On May 6, 2024, the Ontario Legislature tabled its most recent employment omnibus legislation, the Working for Workers Five Act (the “Act”). If enacted, the Act will revise several Ontario employment laws, including the Employment Standards Act, 2000 (the “ESA”) and the Occupational Health and Safety Act (the “OHSA”).
We’ve provided a brief overview of the proposed changes below.
Amendments to the ESA
Increased Specificity for Job Postings
The Act builds on the last set of revisions to the ESA regarding the content of job advertisements The Act revises Part III.1 of the ESA to require that a public job advertisement discloses whether the advertisement is for an existing vacancy. The Act also includes a requirement that a job advertisement include additional information that may be prescribed; that is, information required by a regulation to be disclosed.
Finally, the Act requires that the employer provide all the necessary information to the employee in Part III.1 within the time period set out in the regulation (meaning this is to be determined).
No More Doctor’s Notes for Sick Leave
Section 50 of the ESA includes a three day unpaid Sick Leave, which permits an employer to request “evidence reasonable in the circumstances” regarding an employee’s entitlement to take this leave.
The Act amends this Section of the ESA to specify that an employer may not require an employee to provide a certificate from a qualified health practitioner (including a physician, registered nurse, or psychologist) as this evidence.
The Act does not specify what will constitute this “evidence”; only that a doctor’s note is not it.
Increased Maximum Fine for Individuals
The ESA includes penalties for violating it. The ESA at Section 132 currently includes a maximum fine of $50,000.00 and up to twelve months of imprisonment for an individual. The Act amends this Section of the ESA to increase the maximum fine to $100,000.00.
Amendments to the OHSA
New Definitions – What is a Workplace and What is Harassment
The Act amends Section 1 of the OHSA to expand the definition of several terms.
The definition of “industrial establishment” is expanded to explicitly omit “an office located in a private residence”, meaning that an employee working from home is not considered to be working in an industrial establishment. This does not impact telework – see below.
The definition of “workplace harassment” is expanded to add “including virtually through the use of information and communications technology”, so that the new definition reads:
engaging in a course of vexatious comment or conduct against a worker in a workplace including virtually through the use of information and communications technology that is known or ought reasonably to be known to be unwelcome.
The definition of “workplace sexual harassment” is also expanded to include this language, so that the new definition reads:
engaging in a course of vexatious comment or conduct against a worker in a workplace including virtually through the use of information and communications technology because of sex, sexual orientation, gender identity or gender expression, where the course of comment or conduct is known or ought reasonably to be known to be unwelcome.
This expands workplace harassment and workplace sexual harassment to include harassment via electronic means; though it is arguable that harassment via this media was already a breach of the OHSA, this amendment clarifies the matter.
Telework
The Act also revises Section 3 of the OHSA, Private Residences. The OHSA currently excludes work done by the owner, occupant or servant of the owner in or about a private residence. The Act revises the OHSA to explicitly cover telework performed at an employee’s home. This is a large expansion of the areas covered by the OHSA, and a major step towards recognizing the changing dynamics of the workplace.
Mandatory Postings
The OHSA requires that an employer post the names of all Joint Health and Safety Committee members and a copy of the employer’s’ OHSA policy in a conspicuous place in the workplace. The Act amends this requirement to permit an employer to fulfill this by posting this information in a “readily accessible electronic format”.
Takeaways
The Act updates the ESA and OHSA to a limited extent to address modern requirements and the changing workplace. The Act has only had its First Reading and has not yet received Royal Assent, meaning that it has not become law. Further, even when this receives Royal Assent, the changes it includes will not come into force until proclaimed by the Lieutenant Governor.
Despite these updates, a number of areas of the modern workplace still remain unaddressed by the covering statutes. For example, the ESA does not include a job protected leave of absence for an ill employee (beyond the three days of Sick Leave), despite this being present in other provinces’ employment statutes. Whether this will be dealt with in a future piece of legislation (likely called the Working for Workers Six/Seven/Eight Act) remains to be seen.
We will continue to monitor and provide updates on this Act and any other relevant legislation. At Rudner Law, we have experience advising both employees and employers in the interpretation and application of statutes. If you have any questions about your situation or if you would like to get legal advice, please feel free to contact us.
