Upcoming and Proposed Changes to Ontario's Workplace Laws

JONATHAN BORRELLI AND JORDAN CANTOR

Partners KMB Law

Once again, employers should brace themselves for important changes to employment laws in Ontario. The Ontario government has a series of legislative changes that came into effect on October 26, 2023, in addition to some potential changes that may be forthcoming.

Legislative Changes – Bill 79, Working for Workers Act, 2023

In 2021, the Ontario Government introduced the first Working for Workers Act. This legislation prohibited non-compete agreements and required larger employers to create a written policy concerning disconnecting from work. The Working for Workers Act 2022 required employers to have a written policy concerning the electronic monitoring of employees. The third iteration of the Working for Workers Act received royal assent on October 26, 2023, signaling its official adoption into law. The Bill’s provisions were enacted on the same day, significantly impacting businesses. These amendments encompass many areas within the Ontario employment framework, including the Employment Standards Act, 2000 (ESA), the Occupational Health and Safety Act (OHSA), and the Fair Access to Regulated Professions and Compulsory Trades Act, 2006.

Amendments to the ESA

• Mass Terminations: The amendments include certain remote workers in the mass termination rules, expanding the scope of protection for employees. These rules now provide for extended notice periods when 50 or more employees are terminated at an “establishment.” The revised definition of “establishment” includes an employee’s private residence if the employee conducts work exclusively from that location, thereby affecting termination entitlements in mass termination scenarios.

• Reservist Leave Expansion: The eligibility criteria for reservist leave are broadened to encompass situations where an employee requires treatment, recovery, or rehabilitation due to illness or injury resulting from their involvement in reservist activities. Furthermore, the service requirement for reservist leave eligibility has been reduced from three to two months.

• Temporary Help Agencies: Bill 79 would also strengthen protections for foreign nationals. First, it would amend the ESA by enhancing the licensing requirements for recruiters and those who use third parties to assist with the recruitment and employment of foreign nationals. The licensing requirements will focus on persons who directly charge fees prohibited under section 7 of the Employment Protection for Foreign Nationals Act, 2009 (EPFNA). Bill 79 also amends the EPFNA to provide that the Ontario Labour Relations Board (Board) would be required to reduce penalties associated with notices of contravention related to a person taking possession of or retaining a foreign national’s passport or work permit where the Board determines that the penalty is “excessive in the circumstances or is, by its magnitude, punitive in nature….”

Occupational Health and Safety Act

Under the OHSA, the maximum fine for corporations violating occupational health and safety regulations increased from $1.5 million to $2 million. These heightened penalties underscore the government’s commitment to safeguarding workplace safety.

Fair Access to Regulated Professions and Compulsory Trades Act, 2006

Regulated professions in Ontario now carry a duty to collaborate with the government to ensure that there are sufficient numbers of qualified professionals available as a matter of public interest. This responsibility seeks to address concerns related to workforce availability and competency in regulated professions. Professions that previously relied on “Canadian experience” as a qualification now must provide alternatives for registration. These changes open doors for a more diverse and inclusive workforce, minimizing barriers to entry.

Proposed Legislative Changes to the ESA

On November 6, 2023, the Ontario government unveiled a series of proposals aimed at enhancing transparency and accountability in the workplace. These forthcoming legislative changes include the disclosure of salary ranges in job postings, the regulation of artificial intelligence (AI) use in hiring processes, and a comprehensive revaluation of Non-Disclosure Agreements (NDAs) in cases of workplace sexual harassment and violence. These proposed changes will be a fourth update in the Working for Workers series, and we expect their announcement during the week of November 14, 2023.

Disclosing Salary in Job Postings

There are suggestions that there will be a consultation period on the specific requirements of the anticipated legislation. The government has hinted that it may only apply to positions below a certain yearly earnings threshold. The Ministry of Labour has intimated that $100,000 a year may be the appropriate threshold, though that number is subject to change.

AI in Hiring

Employers will soon be mandated to inform job applicants when they employ AI tools and algorithms in their hiring processes. The extent of this disclosure requirement remains uncertain for the time being.

NDAs, Workplace Sexual Harassment, and Workplace Sexual Violence

The government will also begin a consultation process geared at assessing potential restrictions on the use of NDAs concerning allegations of workplace sexual harassment and workplace sexual violence. Employers have faced criticism for using confidentiality clauses in settlement agreements when used in the context of incidents or allegations of workplace sexual harassment and workplace sexual violence.

While the Government of Ontario is interested in restricting the use of NDAs in workplace sexual harassment and violence cases, it has also expressed that any such restrictions must respect the rights of victims and survivors of sexual harassment and violence. This consultation on NDAs follows amendments made in 2022 to the Ministry of Training, Colleges, and Universities Act, which prohibited non-disclosure agreements relating to allegations that an employee of a post-secondary institution committed an act of sexual misconduct towards a student.

Contact our Employment and Labour Law Department for more details on how to protect your business and prepare for these new changes.

This article is provided for general information purposes and should not be considered a legal opinion. Clients are advised to obtain legal advice on their specific situations.