In A Flash

Bill 88 Passes. Here’s What It Means for Ontario Employers

On April 11, 2022, Bill 88 – the Working for Workers Act, 2022 (“the Act”) – became law. It enacts a Digital Platform Workers’ Rights Act, 2022, and makes amendments to the Employment Standards Act, 2000, the Occupational Health and Safety Act, 1990, and the Fair Access to Regulated Professions and Compulsory Trades Act, 2006. These changes will have significant implications for Ontario employers.

Written Policy On Electronic Monitoring of Employees

Through amendments to the Employment Standards Act, 2000 (the “ESA”), the Act requires that all employers who employ 25 or more workers must have a written policy in place on electronic monitoring of employees. This can be a new policy or a change to an existing policy. It must include:

  • information on whether the employer electronically monitors employees and if so,
    • a description of how and in what circumstances the employer may electronically monitor employees, and
    • the purposes for which information obtained through electronic monitoring may be used by the employer;
  • the date the policy was prepared and the date any changes were made to the policy; as well as
  • any other information as may be prescribed by law in the future.

Employers who had 25 or more employees on January 1, 2022 must have this policy in place by October 11, 2022, and provide a written copy of the policy to existing employees by November 10, 2022. In subsequent years, any employer who has 25 or more employees on January 1 of any year, must have a policy in place by March 1 of that year.

Employers must provide a written copy of the policy to all employees within 30 days from the day the employer is required to have the policy in place, or for new employees, within 30 days of their joining date, or for assignment employees of temporary help agencies, within 24 hours of the start of the assignment, whichever is later. The Act allows an employee may make a complaint in writing to the Ministry of Labour, Trade and Skills Development in respect of whether a copy of the policy was provided in a timely manner.

This new requirement does not affect or limit an employer’s ability to engage in electronic monitoring of employees, or the employee’s ability to use information obtained through electronic monitoring of its employees, nor does it establish any new privacy rights for employees. As discussed in a previous article, electronic monitoring could include, for example, tracking the use of computers, emails, cell phones, GPS systems and other electronic devices, and is applicable in the workplace, in the field or at home.

Increased Penalties for Occupational Health and Safety Act

The Act has substantially increased penalties under the Occupational Health and Safety Act (the “OHSA”) for individuals, directors and officers of corporations, and prescribes aggravating factors that must be taken into account for the purposes of determining a penalty. The new changes also include a doubling of the limitation period under the OHSA from one year to two years. These changes will take effect on July 1, 2022.

In a recent in-depth analysis, we reviewed these changes, and discussed the likelihood of whether this would immediately lead to drastic increase in fines awarded by courts, what it meant for prosecutions already under way, and what steps directors and officers need to take.

New Minimum Standards for Digital Platform Workers

On a date to be determined, Bill 88 enacts the Digital Platform Workers’ Rights Act, 2022 (the “DPWRA”) which sets new minimum standards or digital platform workers.  These requirements apply to online platforms that allow workers to choose to accept or decline work such as ride share, delivery, courier or other services.

As anticipated in a previous article, the following rights and protections are to be established for covered workers:

  • Right to information regarding pay, tips, work assignments and performance ratings
  • Right to a minimum wage for each work assignment performed
  • Right to amounts earned, tips and gratuities
  • Right to notice of removal and written explanation
  • Rights to dispute resolution in Ontario
  • Rights against reprisal

Once in effect, the DPWRA will impose a duty upon provincially regulated employers to keep records, and make it an offence to make, keep or produce false records or other documents as required. The DPWRA will create a complaint and enforcement mechanism, allowing an employee to file a complaint with the Ministry regarding contraventions of the DPWRA, with a limitation period of two years. The DPWRA sets penalties of up to $50,000 and/or 12 months imprisonment for an individual, or up to $100,000 for a corporation for a first conviction, and also includes provisions for publishing public notices of contraventions.

The DPWRA is not yet in force, but will come into force on a day to be named by proclamation.

Construction Sites, Other Workplaces at Risk of Opioid Overdoses to Have Naloxone Kits and Training

The new requirements impose a duty upon employers under the OHSA to provide and maintain a naloxone kit in good condition at a workplace, where there may be a risk of a worker having an opioid overdose.

The legislation does not specify such workplaces, stating instead that the duty exists where an employer becomes aware, or ought reasonably to be aware, that there may be a risk. According to a news release, 30 per cent of deaths of employees due to opioid-related causes were construction workers, by far the most of any industry impacted. Bars and nightclubs were also at increased risk for opioid overdoses.

Employers are also required to ensure that the kit is in charge of a worker who works in the vicinity of the kit and is trained in recognizing an opioid overdose and properly administering naloxone. Naloxone is a medication that can temporarily reverse the effects of an opioid overdose and allow time for medical help to arrive.

These requirements are not yet in force, and will become effective on a day to be named by proclamation.

Other Changes

The Act also amends the Fair Access to Regulated Professions and Compulsory Trades Act, 2006, to establish timelines within which regulated professions must respond to applications for registration from domestic labour mobility applicants, and mechanisms for review, appeals and exemptions.

As of January 1, 2023, business consultants and information technology consultants who meet certain criteria will be excluded from the application of the ESA, which means certain minimum standards will not apply to them.  The exemption criteria including:

  • The consultant is providing the relevant services through a corporation (where the person is either a director or a shareholder who is party to a unanimous shareholder agreement) or a sole proprietorship (under a business name registered under the Business Names Act);
  • There is a written consulting agreement which sets out when the consultant will be paid and how much (minimum $60/hour, excluding certain sums, expressed as an hourly rate);
  • The consultant is actually paid the contracted amount; and
  • Any other requirements as may be prescribed.

Employees become eligible for reservist leave of absence after three consecutive months of employment of April 11, 2022, down from the previous eligibility requirement of six months. Eligibility is also expanded to include participation in military skills training.

These new requirements follow other changes and requirements previously introduced by the Working for Workers Act, 2021, which came into force in December last year, including removing barriers for foreign-trained professionals, requiring policies on the “right to disconnect”, and banning the use of non-compete clauses. The details of these previous changes are discussed here.

We will continue to update our clients with information as soon as it becomes available. If you have any questions about the new legislation or any questions relating to workplace law generally, please do not hesitate to contact a Mathews Dinsdale lawyer.

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