REGULATORY OUTLOOK AND UPCOMING DEADLINES FOR EMPLOYERS

MAY 6, 2022

Part 3: Ontario’s Working for Workers Act 2  effective April 11, 2022.
What it means for Employers.

Bill 88, Working for Workers Act, 2022, received Royal Assent on Monday, April 11, 2022 and is now in force. These legislative changes are intended to address issues in our modern work environments.

In a previous two-part blogpost, I discussed Bill 27, the Working for Workers Act, 2021, including non-competition agreements and highlights of the Act such as the right to disconnect.

What follows are some of the latest updates to the Working for Workers Act measures.

What’s new?

The Digital Platform Workers’ Rights Act, 2022 will be a separate piece of legislation, and is not yet in force. When it is established, these will be the following rights for workers who perform digital platform work:

• The right to minimum wage under the Employment Standards Act
• The right to a recurring pay period and pay day
• The right to monies earned without deductions or withholdings (unless permitted by law or court order)
• The right to two weeks’ notice of removal from the platform
• The right to information about how pay will be calculated
• The right to be free from reprisal for asserting their rights under the law
• The right to a dispute resolution process based in Ontario

The last point may be one of the most notable, as the foreign-based dispute resolution process used by rideshare giant Uber was the catalyst for a recent Supreme Court decision—Uber Technologies Inc. v Heller—about drivers’ status. These changes attempt to strike a middle ground for rideshare workers, providing them with several of the benefits relied on by employees without officially conferring a change in status.

The other significant change to the most recent law is that the Traditional Chinese Medicine Repeal Act, which would have repealed the licensing body for Chinese medicine practitioners such as acupuncturists, is now off the table.

Key dates for employers

Now that the new law is in force, employers have a clearer understanding of some of the deadlines for compliant policies to be in place.

The Right to Disconnect: June 2, 2022 deadline

The right to disconnect requirement was one of the changes to the law that garnered the most media attention. Employers will be required to implement a policy that allows workers time to power down in their off hours, when they will not be required to respond to work-related phone calls, emails, text messages, etc.

Employers that have 25 or more workers in place (including remote workers, probationary employees, employees on a leave of absence, employees who are on lay-off, etc.) as of January 1, 2022 have until June 2, 2022 (coincidentally, this is the day of the 2022 provincial election, so here is a link to employee voting rights) to have their ‘right to disconnect’ policies in place.

By 2023, employers that have 25 or more employees on January 1st of the year must have their policies implemented before March 1st of 2023. Learn more about the requirements of the right to disconnect policy in my previous post.

OHSA Changes: July 1, 2022 deadline

Along with changes to the Employment Standards Act, there are also several changes to the Occupational Health and Safety Act (“OHSA”) coming down the pipeline. These include:

• A requirement to maintain good, working condition Naloxone kits if employers are aware, or ought to be aware, of a possible opioid overdose (as of June 1, 2023)
• An increase in the maximum penalties for violations from $100,000 to now $500,000 (as of July 1, 2022)
• A penalty for directors and officers who fail to create a safe work environment that leads to a worker’s severe injury or death on the job of up to $1,500,000 or 12 months in prison or both (as of July 1, 2022)
• Consideration of specific aggravating factors when considering penalties against defendants (as of July 1, 2022)
• A longer limitation period for prosecutions under OHSA from one year to the date of the incident to two years (as of July 1, 2022)

Minimum Wage Increase: October 1, 2022

Ontario will be raising its general minimum wage by 8% from $15 per hour to $15.50 per hour, commencing October 1, 2022.  The general minimum wage applies to most employees in the province. Of note, on October 1 of every year starting in 2022, the minimum wage rates may increase annually. The new rates to come into effect on October 1 will be published on or before April 1 of every year, beginning in 2022. Details may be found here.

Electronic Monitoring: October 11, 2022 deadline

Another major change that will soon be in place is the requirement for workplaces of 25 or more employees to have an electronic monitoring policy. This needs to be a written policy that outlines for employees how and in what circumstances they may be monitored, and the purpose for this data monitoring (what the employer will use it for).

The new law does not regulate what employers can and cannot do with this data, but they can no longer obtain it without employees’ knowledge. This is crucial for employers who intend to maintain remote work in any capacity. Whether they have a browser-monitoring firewall, a keylogger software that tracks keystrokes, or any other sort of surveillance in place, employees need to know about it.

Employers have until October 11, 2022 to write up this policy, and until November 10, 2022 to distribute it to their existing employees. After this year, employers that are at 25 employees by January 1, 2023 will have to have a policy in place by March 1, 2023.

There are other small changes coming as well, such as exclusions in the Employment Standards Act coming for some IT and business consulting workers, and a reduction to military reservist leave.

Final Thoughts

Changes to the law are always confusing when first announced, and multiple changes all at once can seem daunting. The challenge is that even if the new law is confusing, employers can easily be penalized for failing to comply.

Employers will need to implement these new policies quickly, and they need to be workable for the business. Borrowing from a friend or grabbing something online won’t take the particulars of your organization into consideration, and likely won’t cut it if the Ontario Ministry of Labour comes calling.

Should you have any questions about the changes introduced by Bill 88, or for legal services, please contact me.

If you are an employer, let’s work together to get it right the first time, and build out workplace policies that work for your business. I have more than 25 years of experience as an employment lawyer and have acted for employers of all shapes and sizes.

If you are an employee, these changes in the law grant you new rights that must be protected. The law can be confusing as applied to a specific situation, and we can help assess whether or not your employer is violating your rights and the best course of action.

If you are a lawyer or paralegal looking to hire a mediator or mediator-arbitrator for your employment law dispute, I have more than a decade of experience mediating virtual, in-person, and hybrid employment law and other civil disputes.

This blog is for educational purposes only and is not intended as legal or other professional advice. The use of this blog does not create a lawyer-client relationship.