We are not yet at the halfway point of 2024. Despite this, both Queen’s Park and Parliament Hill have already been quite busy creating new rules that will apply to employers with operations in Ontario. In this article, we highlight a few of the major changes announced in the Working for Workers Five Act, 2024 and the 2024 Federal Budget and summarize how these may impact your organization.

Working for Workers Five Act, 2024 (Bill 190)

Since coming to power in 2018, the Progressive Conservative government has taken to tinkering with the Employment Standards Act, 2000 (“ESA”) and other related employment legislation, such as the Occupational Health & Safety Act (“OHSA”), on almost an annual basis. The government’s preferred method of making these adjustments has been its signature “Working for Workers Act” legislation.

The latest version, the Working for Workers Five Act, 2024 (Bill 190), is currently undergoing second reading at the Ontario legislature. This means the draft bill is still subject to review and potential adjustment. That said, Bill 190 already contains several interesting new rules that will bring important changes to Ontario workplaces.

Key proposed updates include:

1. Requiring job advertisements to contain information on whether the position being posted relates to an existing vacancy.
2. Potentially forcing employers to “respond to applicants they have interviewed for jobs”. While this requirement has yet to be explicitly detailed in Bill 190, the Ontario Government has publicly signalled its intention to prescribe changes in this regard. The rationale is to prevent employers from ghosting interview candidates and leaving them to guess where they stand in the job recruitment cycle.
3. A ban on employers demanding doctor’s notes from workers as a precondition to qualifying for ESA unpaid sick leave. Employers will still be able to ask workers to provide “evidence reasonable in the circumstances”. Such alternate evidence could include employee self-attestation of illness forms being submitted prior to approving statutory sick leave.
4. An increase to the maximum regulatory fine from $50,000 to $100,000 (for individuals convicted of violating the ESA).
5. Updating the OHSA definitions of “workplace harassment” and “workplace sexual harassment” to include conduct that occurs virtually “through the use of information and communications technology.”
6. Clarifying that OHSA protections apply to remote workers, and specifically, for “telework performed in or about a private residence”.
7. Requiring employers to keep clean and sanitary any washrooms provided for use by workers. Cleaning records for such facilities must also be created and maintained.

2024 Federal Budget (Bill C-69)

The 2024 Canadian federal budget was tabled in the House of Commons on April 16, 2024. Since then, its implementing legislation has progressed to second reading.

If passed, the 2024 Federal Budget includes two particular provisions of note for federally regulated employers:

1. A new presumption, added to the Canada Labour Code (“CLC”), that persons who are paid for their work are to be considered “employees.” A reverse onus will likewise be placed on employers to rebut this presumption (such as if claiming workers have instead been engaged as independent contractors). This rule is intended to strengthen protections against employee misclassification.
2. The CLC will also be updated to require that federally regulated employers adopt a policy concerning disconnecting from work. In so doing, the federal government is following Ontario’s lead, which added a similar requirement in late 2021. Note, however, that this proposed federal disconnecting from work policy requirement does not go so far as to create a standalone employee right to disconnect from work outside of regular hours.

For the purposes of the CLC, a disconnecting from work policy must include:

1. “a general rule respecting work-related communication outside of scheduled hours of work, including the employer’s expectations and any opportunity for employees to disconnect from means of communication;
2. any exceptions to the rule and their underlying rationale; and
3. the effective date of the policy.”

Employers will be required to provide a copy of their disconnecting from work policy to employees and post it in a readily accessible location. It is also expected that employers will consult with employees in creating their policy, and update the same every three years.

Takeaway

As of the date of this article, neither the Working for Workers Five Act, 2024, nor the 2024 Federal Budget have yet passed into law. Both pieces of legislation are nonetheless expected to be approved at some point this year. Accordingly, now is the ideal time to consult with legal counsel and discuss how these newly proposed workplace rules may impact your operations.