This article was co-authored with Maggie Sainty and Rachel Corwin, articling students at Gowling WLG.
In an era where the nature of work is rapidly evolving, Ontario's Bill 190 – the Working for Workers Five Act, 2024, introduces several significant amendments to the Employment Standards Act (the "ESA") and the Occupational Health and Safety Act (the "OHSA").
If passed, these changes should provide stronger protections for workers in the province, remove barriers to employment and improve guidance with respect to remote work requirements and the obligations of employers.
How the Working for Workers Five Act, 2024 amends the ESA
Bill 190 – the Working for Workers Five Act, 2024, proposes several key changes to the ESA, particularly regarding job postings, sick leave and penalties for non-compliance.
Job postings and interviews
Bill 190 introduces a shift in the way employers are required to handle job postings in Ontario. The legislation proposes that all publicly advertised job postings must include a statement disclosing whether the posting is for an existing vacancy. This amendment is designed to address the practice of posting jobs to monitor the market rather than fill a vacancy, a practice that can lead to job seekers wasting their time and resources.
The implications of this change are far-reaching. It promotes transparency in the hiring process and enables job seekers to have a clear understanding of the opportunities available to them. By discouraging employers from using job postings as a tool for market research, job seekers can assume that there is an actual vacancy behind open job postings.
Furthermore, Bill 190 stipulates that when an employer interviews an applicant for a publicly advertised position, the employer is required to provide certain prescribed information to the applicant in respect of the interview within a defined period of time. This requirement ensures that applicants are well-informed about the interview process and know what to expect, promoting fairness and transparency in the hiring process.
In addition to these requirements, Bill 190 contemplates retention obligations for employers regarding any information they have provided to applicants. Employers will be required to retain public job postings and related information for a period of three years after the day the information was distributed. This provision is designed to ensure that employers adhere to the new requirements described above.
Sick leave
Under the existing framework, employees who have been with an employer for at least two consecutive weeks are entitled to an unpaid leave of absence of up to three days per calendar year due to personal illness, injury or medical emergency. This type of leave is distinct from any unpaid leave of absence that an employee may be entitled to under Ontario's Human Rights Code.
The ESA currently allows employers to request evidence that is reasonable in the circumstances from an employee who requests this type of leave. This evidence could include any documents or statements that substantiate the employee's claim of illness or injury.
However, Bill 190 introduces a significant change to this provision. The bill proposes a prohibition on employers requiring an employee to provide a certificate from a "qualified health practitioner" as reasonable evidence. This means that employers can no longer request a doctor's note when an employee requests statutory sick leave under the ESA.
This amendment is designed to protect employee health and privacy. It acknowledges the fact that obtaining a doctor's note can be burdensome, particularly when dealing with an illness or injury. It also recognizes that requiring a doctor's note can place unnecessary strain on healthcare providers.
However, while employers are prohibited from requesting a doctor's note, they may still require an employee to provide evidence that is "reasonable in the circumstances" to prove their entitlement to such leave. This could include other forms of documentation or proof (provided they do not infringe on the employee's privacy or health rights), including the employee's signed declaration stating that they cannot attend work due to sickness.
Penalties
The ESA has also increased the maximum fine for an individual who is convicted of violating the legislation from $50,000 to $100,000.
Bill 190's amendments to the OHSA
The OHSA has also undergone significant amendments, particularly with regard to defining the "workplace," "workplace harassment" and "workplace conditions."
"Workplace"
The advent of the digital age and society's increasingly global nature have led to drastic increases in the prevalence of remote work or telework. As a result, the traditional brick-and-mortar definition of a "workplace" no longer applies in many cases.
Recognizing this shift, Bill 190 introduces an amendment to the OHSA that expressly applies the legislation to work performed remotely in or about a private residence. This amendment is a significant step forward in acknowledging and addressing the unique challenges and risks associated with remote work.
With this new definition, employers are required to ensure that the health and safety measures in place at the physical workplace extend to the home office as well. This could include ergonomic assessments, safe use of equipment and proper work procedures, among others.
Furthermore, the amendment also implies that employers have a responsibility to address any health and safety concerns that may arise in the home office. This could involve providing the necessary training, equipment and support to employees working from home.
We will continue to monitor the developments as Bill 190 is introduced in the legislature to determine the effect of these amendments on employers.
"Workplace harassment" and "Workplace sexual harassment"
The definitions of "workplace harassment" and "workplace sexual harassment" have been updated to include virtual instances of such activities occurring through the use of information and communications technology.
Furthermore, the amendment also implies that employers have a responsibility to create a safe and respectful virtual work environment. This could involve setting clear expectations for online behavior, promoting a culture of respect and taking swift action against any instances of virtual harassment.
With respect to these definition changes, designed to acknowledge the at-home workplace, the application of the OHSA to private residences also raises questions about the boundary between personal and professional life. It will be important for employers and employees to navigate this new landscape carefully by respecting employee privacy while ensuring health and safety.
Workplace conditions
Under the new amendment, employers are now required to ensure that washroom facilities are maintained in a clean and sanitary condition. This requirement recognizes that clean and sanitary washroom facilities are not just a matter of comfort, but also a crucial aspect of worker health and safety.
This requirement could entail scheduling regular cleanings, ensuring the availability of cleaning supplies and addressing any issues related to plumbing or sanitation promptly.
Key takeaways
Bill 190 – the Working for Workers Five Act, 2024 reflects the evolving nature of work and the need for legislation to keep pace.
As these changes make their way through the legislative process (on Second Reading, Bill 190 was Ordered referred to a Standing Committee on Finance and Economic Affairs, which is where it currently stands), it is important for both employers and employees to stay informed and understand their rights and responsibilities. Increased fines for non-compliance certainly raise the stakes for employers in Ontario and remind them of their duty to be informed of these legislative changes and of their effects on the workplace.
Read the original article on GowlingWLG.com
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