Working for Workers Act: a trilogy of Ontario’s employment law changes

In late 2021, the Ontario government passed their first of what would become a trilogy of Bills under the title of “Working for Workers Act” (collectively “Acts”) that would make amendments to several pieces of employment legislation, including the Employment Standards Act, 2000 (“ESA”) and the Occupational Health and Safety Act (“OHSA”). Bill 27 came into force in 2021 and Bill 88 was legislated in 2022. Finally, the Ontario government introduced Bill 79 in early 2023, which is anticipated to come into force later this year.

This article is intended to help HR professionals understand and address these new legal changes. In the following sections, we will provide an overview of Bill 27, 88, and 79, and provide information on the more pertinent changes that affected employers in the construction industry.

Bill 27

Two of Bill 27’s significant amendments were to the ESA with respect to disconnecting from work and the provisions regarding non-competition clauses/agreements.

Bill 27 amended the ESA to require employers with 25 or more employees to create and implement written policies regarding disconnecting from work. The objective was to create time for employees that were free from work. When drafting their disconnecting from work policy, an employer should consider the following:

• The scope of disconnecting and whether it is limited to work-related communications.
• Whether there are certain windows of time outside of which employees may disconnect.
• Whether there are certain circumstances or work that should be included in – or excluded from – any ability to disconnect from work.
• Expectations for response times to voicemails and emails and when to set an “out of office.”

The ESA was also amended to prohibit employers from entering into employment agreements which include non-competition clauses. There are two exceptions to this new prohibition. The first exception allowed for non-competition clauses to be used in employment agreements with executive employees (which included 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 holds any other chief executive position). The second exception allowed for non-competition clauses to be used in employment agreements in the context of a sale of a business.

Bill 27 included an amendment to the OHSA to add a requirement that owners of workplaces must provide to people making deliveries or collecting items for delivery elsewhere access to a washroom. The OHSA provided some exceptions to this requirement, where access can be denied if providing access was not reasonable or practical with regard to the health and safety of any person at the workplace, or if the washroom was in, or could only be accessed through a dwelling.

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Bill 88

Bill 88 amended the ESA for employers with 25 or more employees, requiring them to have a written electronic monitoring policy. Bill 88 has not created a right for employees to not be electronically monitored by their employer, nor were any new privacy rights established. Further, Bill 88 had not prescribed a definition to “electronic monitoring,” but government guidance has indicated that electronic monitoring would include all forms of employee monitoring that was done electronically.

If an employer has identified that they engage in some form of electronic monitoring, the electronic monitoring policy must include a statement confirming that the employer does monitor their employees. The policy must also include a description of how the employees are monitored, the circumstances in which employers may engage in monitoring their employees, and for what purposes the employer may use the information collected through electronic monitoring. Administratively, the policy must also contain the date the policy was prepared and the date any changes were made to the policy.

Bill 88 made several amendments to the OHSA. Some of the changes included significant increases to the penalties in relation to a contravention of the OHSA. The maximum fine for individuals, which includes workers and supervisors, increased from $100,000 to $500,000. The new maximum fine for a director or officer of a corporation was $1,500,000. Directors and officers of a corporation may also be punished with a maximum imprisonment term of 12 months. Individuals, directors, and officers were facing significantly harsher penalties for a violation of the OHSA due to new legislation.

Bill 88’s amendments to the OHSA codified the aggravating factors that an adjudicator would consider when determining a penalty for an OHSA violation. These factors include:

• The offence resulted in the death, serious injury or illness of one or more workers.
• The defendant committed the offence recklessly.
•  The defendant disregarded an order of an inspector.
• The defendant was previously convicted of an offence under this or another Act.
• The defendant has a record of prior non-compliance with this Act or the regulations.
• The defendant lacks remorse.
• There is an element of moral blameworthiness to the defendant’s conduct.
• In committing the offence, the defendant was motivated by a desire to increase revenue or decrease costs.
• After the commission of the offence, the defendant,
  • Attempted to conceal the commission of the offence from the Ministry or other public authorities, or
  • failed to co-operate with the Ministry or other public authorities.

The other prominent amendment to the OHSA was with respect to naloxone kits. Starting June 1, 2023, employers will be required provide naloxone in the workplace in certain circumstances described in the OHSA. If the employer becomes aware or ought to be reasonably aware of the following situations, they must provide a naloxone kit:

• There was a risk of a worker opioid overdose.
• There was a risk that the worker overdosed while in a workplace where they performed work for the employer.
• The risk was posed by a worker who performed work for the employer.

An employer will not be required to provide a naloxone kit if all three of these criteria are not present in the workplace.

Employers must be transparent about whether or not they are electronically monitoring their employees under Bill 88.

Bill 79

Bill 79 has proposed amendments including an increase to maximum penalties for a contravention of the OHSA. Building off of Bill 88, Bill 79 proposed to increase the maximum penalties for corporations from $1,500,000 to $2,000,0000. The Acts have collectively raised the OHSA penalties significantly, and employers must continue to maintain and improve their occupational health and safety programs to avoid any liability for contravening the OHSA. The proposed changes to the maximum fine for corporations would be the highest fines for a workplace health and safety violation in the nation.

The newest Working for Workers Act proposed amendments to the mass-termination provisions in the ESA. The ESA’s mass termination rules trigger if an employer terminates 50 or more employees in the employer’s establishment within a four-week period. There was ambiguity if whether an employee’s personal residence was counted as part of the employer’s establishment since many employees have been required to work from home due to the COVID-19 pandemic.

Bill 79’s amendments attempted to eliminate the ambiguity by stating that an employer’s establishment could include the employee’s private residence if the employee performed work in the private residence and the employee has not perform work at any other location where the employer carries on business. Employees who are fully remote would still be captured in the ESA’s mass termination provisions.  

Another of Bill 79’s proposed amendments to the ESA included changes to the military reservist leave. The amendments seek to expand the eligibility of the leave. If the proposed amendments passed, an individual may take the reservists leave to take time off to recover, treat, or rehabilitate a physical or mental health injury, illness, or medical emergency, that was a result of participating in a Canadian Forces operation. The amendments proposed to make this leave available to reservists after two consecutive months of employment, altering it from the current requirement of three consecutive months of employment.

Norm Keith is an employment and labour lawyer, the author of 12 books, and partner at KPMG Law LLP in Toronto.

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