Exemptions allowed for bona fide occupational requirement
Ontario’s Liberal government has tabled a bill that would end mandatory retirement, but allow for exemptions in cases where mandatory retirement can be justified as a bona fide occupational requirement.
The bill would amend the Ontario Human Rights Code, which currently does not protect people aged 65 and older from age discrimination for employment purposes.
The bill would also amend a number of related statutes, including laws that require civil servants and certain holders of public office, including returning officers, coroners, and ombudspersons, to retire at the age of 65.
It would also change the Employment Standards Act, 2000, which says employees terminated at 65 as a result of a mandatory retirement policy are not entitled to notice of termination or pay in lieu.
If the bill is passed, all eligible employees, regardless of age, would be entitled to receive notice of termination or payment in lieu.
Exceptions may be made for workplaces that can demonstrate that age-based job requirement is a bona fide occupational requirement. The employer still has to show that the employee does not meet the job requirement and cannot be accommodated without undue hardship to the employer.
The move to scrap mandatory retirement has come at the urging of the Ontario Human Rights Commission. In a 2001 paper, the commission stated that mandatory retirement policies undermine the dignity and sense of self-worth of older workers.
“People are healthier and living longer so it is unfair to insist that they stop working simply because they turn 65,” Labour Minister Chris Bentley said in a statement.
“Ending mandatory retirement would allow workers to retire based on lifestyle, circumstance and priorities. We listened to the needs and concerns of business, labour and others who have consulted with us and are doing this in a way that protects existing rights to pension, early retirement and benefit plans.”
The bill, if passed, will take effect one year after it receives royal assent.
Once in effect, it would make mandatory retirement policies and mandatory retirement provisions in collective agreements unenforceable. Unions and employers, however, would still be able to negotiate early retirement packages.
The bill would not change eligibility to receive Canada Pension Plan at age 65. It would also have no impact on pension benefits already earned. However, employees could continue membership in pension plans and accrue benefits past 65, subject to service or contribution caps.
Entitlements under the Workplace Safety and Insurance Act would not change. Workers injured at age 63 or older will continue to qualify for loss of earning benefits up to two years. All other injured workers would be eligible for loss of earning benefits until age 65.
