Written By Brendan Weiler and Talia Bregman

On October 28, 2024, Ontario's Working for Workers Five Act, 2024 (Bill 190) received Royal Assent. As Ontario’s fifth and most recent legislative initiative introduced under the “Working for Workers” headline, Bill 190 makes further changes to Ontario’s Employment Standards Act, 2000 (the ESA), and the Occupational Health and Safety Act (the OHSA). While several of Bill 190’s legislative changes are already in effect, others will only come into effect on a future date that is yet to be proclaimed.

In this blog, we review some of the key legislative changes to provincially regulated employers—and their employees—in Ontario. 

Changes to Ontario's ESA

The following changes to the ESA are now in effect:

• Sick Leave Documentation: employers can no longer require an employee to submit a certificate from a “qualified health practitioner” (which now includes a psychologist) as evidence that the employee is entitled to take sick leave under the ESA, although employers can still require that an employee provide other evidence that is reasonable in the circumstances.
• Increased Monetary Penalties for Individuals: the maximum fine for individuals found to have violated the ESA has increased from C$50,000 to C$100,000.

The following changes to the ESA will only come into effect on a future date to be proclaimed:

• Job Posting Information: every publicly advertised job posting for a position in Ontario will need to (1) disclose whether the posting is for an existing job vacancy; and (2) include other information that may be prescribed by regulation, which has not yet been published. This requirement may be subject to certain exemptions, again which have not yet been published.
• Duty to Inform Applicants Interviewed: employers will need to provide to all applicants who are interviewed in response to a publicly advertised job posting for a position in Ontario with specified information and in a specified timeframe, the details of which will be prescribed by regulation that has not yet been published. Employers will also need to retain, or arrange for someone else to retain, records of information provided to an applicant for three years. 

Changes to Ontario's OHSA

The following changes to the OHSA are now in effect:

• Extension of OHSA Requirements to Private Residences: the OHSA has been amended to explicitly confirm that the OHSA applies to remote work (or “telework”) performed in or about an employee’s private residence. Relatedly, the OHSA's definition of “industrial establishment” has been amended to confirm that an office located in a private residence is not considered an “industrial establishment” for the OHSA's purposes.
• Expanded Definitions to Cover Virtual Harassment: the OHSA's definitions of “Workplace Harassment” and “Workplace Sexual Harassment” have been amended to expressly capture interactions that occur “virtually through the use of information and communications technology.”
• Electronic Posting of Required Information: employers may post information required to be posted under the OHSA (such as a copy of the OHSA and the employer’s health and safety policy) in electronic format rather than in the physical workplace, provided that (1) this information is posted in a format that is readily accessible to all workers; and (2) the employer gives workers direction on how and where to access the information.
• Remote Joint Health and Safety Committee Meetings: Joint Health and Safety Committee meetings may be held in locations other than the physical workplace, including virtually.

The following changes to the OHSA will only come into effect on a future date to be proclaimed:

• Washroom Facilities: employers will be required to ensure that any washroom facilities provided for worker use are “maintained in a clean and sanitary condition”, and that cleaning records are kept, maintained and made available as prescribed. 

Key Takeaways

While several of Bill 190’s changes to the ESA and OHSA are now in effect, others will require future proclamation by the lieutenant governor before they come into force. We also continue to await the development of accompanying regulations and guidance materials to clarify the specifics behind some of these new employer obligations. We will continue to keep an eye on these developments and provide updates as they become available.

In the interim, Ontario employers should review and update their applicable workplace policies and procedures to ensure compliance with the ESA and OHSA changes that are already in effect, and with those that will soon be in effect.

If you have any questions about any of the changes discussed in this post, please contact one of the authors, or another member of the Bennett Jones Employment Services group, for more information. 

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