Recently, the Government of Ontario introduced, and in some cases passed, several legislative changes to address issues in the modern workplace. These include disconnecting from work, electronic monitoring of employees, non-competition agreements in employment contracts, and specific requirements for employers in the gig economy. The two primary pieces of legislation introduced are Bill 27, the Working for Workers Act, 2021 and Bill 88, the Working for Workers Act, 2022.
These amendments are addressed briefly in this article and more fully in our next HReview webinar to be held on June 8, 2022 (details on the back page of this newsletter).
Bill 27 was given Royal Assent on December 2, 2021. The Bill amends the Employment Standards Act, 2000 (“ESA”) to require a disconnect from work policy and prohibit the use of a non-competition provision in an employment contract. Bill 27 also amends the Occupational Health and Safety Act (“OHSA”) to require businesses to allow delivery persons to use the washroom at the place of delivery.
Disconnect from Work
Bill 27 amended the ESA to require an employer with more than 25 employees to create a disconnect from work policy. The ESA defines “disconnecting from work” as “not engaging in work- related communications, including emails, telephone calls, video calls or the sending or reviewing of other messages, so as to be free from the performance of work.”
The policy does not need to provide an employee the ‘right’ to disconnect from work or create any new entitlements for employees. However, an employer should ensure it complies with the existing hours of work, vacation and public holiday provisions of the ESA, all of which provide for time away from work.
Bill 27 amended the ESA to prohibit an employer from entering into a “non-compete agreement”, defined as “an agreement… that prohibits the employee from engaging in any business, work, occupation, profession, project or other activity that is in competition with the employer’s business after the employment relationship between the employee and the employer ends”.
This prohibition applies retroactively to October 25, 2021 but does not apply to a non-competition agreement entered into prior to October 25, 2021. A non-competition agreement entered into in violation of the ESA is void.
There are two exceptions. First, the prohibition does not apply if the agreement is with an “executive” (defined in the ESA). Second, the prohibition does not apply if, as part of a sale of a business (including a lease), or part of a business, the purchaser and seller agree the seller is prohibited from engaging in competitive activity after the sale and the seller becomes an employee of the purchaser immediately after the sale.
At the time of writing, Bill 88 had received first reading. The key features of Bill 88 are the creation of the Digital Platform Workers’ Rights Act, 2022 which addresses standards for workers in certain gig economy jobs, amendments to the ESA to require an electronic monitoring policy, and amendments to the OHSA regarding naloxone kits and increasing fines and limitation periods.
Digital Platform Workers’ Rights Act, 2022
The Act will define “digital platform work” as “the provision of for payment rideshare, delivery, courier or other prescribed services by workers who are offered work assignments by an operator through the use of a digital platform”.
The Act will provide digital platform workers with the right to:
- Information related to pay, work assignments and performance rating
- A recurring pay period and pay day
- Minimum wage for each work assignment
- Amounts earned by the worker and to tips and other gratuities
- Notice of removal from an operator’s digital platform
- Resolve digital platform work-related disputes in Ontario
- Be free from reprisal
The Act also contains enforcement mechanisms and complaint procedures if there is an alleged breach.
Bill 88 will amend the ESA to require an employer with more than 25 employees to have a written policy regarding electronic monitoring of employees. This policy must describe 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.
Bill 88 will amend the OHSA to require an employer to supply naloxone kits if the employer becomes aware there may be a risk of a worker having an opioid overdose at the workplace. Bill 88 also increases certain maximum fines and increases the limitation period for prosecution under the OHSA from one year to two years.
For additional insight into these legislative changes, please join us at our next HReview webinar on June 8, 2022 (details on the back page of this newsletter).
To learn more and for assistance, contact the team at Sherrard Kuzz LLP.