Written By Carl Cunningham and Haley Zerr

The Ontario government has recently passed new legislation, Bill 88: Working for Workers Act, 2022, which includes amendments to the Employment Standards Act, 2000 (ESA), and the Occupational Health and Safety Act, as well as an entirely new Act, the Digital Platform Workers' Rights Act, 2022. Bill 88 received Royal Assent on April 11, 2022.

This new legislation comes only months after recent amendments to the ESA banning non-competes and requiring a disconnect from work policy, which was discussed in our previous insight Ontario Bill 27: Working for Workers Act, 2021 is Now the Law.

With the passing of this legislation, Ontario is the first province to require employers to have in place an electronic monitoring policy and legislation regarding the regulation of digital work.

Amendment to ESA: Addition of "Electronic Monitoring" Policy

Employers with 25 or more employees (as of January 1 each year) will be required to develop a written "electronic monitoring" policy by March 1 of that year. The intention behind this policy is to protect workers' privacy by requiring employers to be transparent about how they track employees' use of electronic devices, such as computers, cell phones, and GPS systems amongst other devices.

The policy must address:

• whether the employer electronically monitors its workers, and if yes:
  • how and in what circumstances the employer monitors its workers; and
  • set out the purposes for which information obtained through electronic monitoring may be used by the employer

While employers are required to have a policy in place that discloses that it electronically monitors employees, this new requirement does not affect or limit an employer's ability to use information obtained through electronic monitoring of its employees.  Similar to the recent amendments to the ESA requiring a disconnecting from work policy, the focus appears to be on transparency of the employer's practices/expectations as opposed to creating substantive rights.  For example, in terms of complaints related to the policy, the amendments clarify that complaints may only be made with respect to an employer's obligation to provide copies of the written policy to current, new or assignment employees.

A copy of the policy must be provided to each employee within 30 days of the date the policy is required to be put in place, or where a change is made to the policy, within 30 days of that change. Similarly, a copy of the policy must be provided to any new hires within 30 days of their hire date or within 30 days from the date the policy is put is place, whichever is later.

At this time, no additional information is available on the required content of the policy and we expect that similar to the recent disconnecting from work policy, the Ministry of Labour will release further guidance.  We will update you as more details on the content of the policy become available.

An employer has six months from date Bill 88 receives Royal Assent to develop and implement the policy. As Bill 88 received Royal Assent on April 11, 2022, employers have until October 11, 2022 to comply.

Other ESA Amendments

Exemption of Business and Information Technology Consultants

The ESA is amended to provide that the ESA does not apply to certain business and information technology consultants, if certain requirements are met.  The ESA defines "business consultant" as an individual who provides advice or services to a business or organization in respect of its performance, including advice or services in respect of the operations, profitability, management, structure, processes, finances, accounting, procurements, human resources, environmental impacts, marketing, risk management, compliance or strategy of the business or organization. "Information technology consultant" means an individual who provides advice or services to a business or organization in respect of its information technology systems, including advice about or services in respect of planning, designing, analyzing, documenting, configuring, developing, testing and installing the business or organization’s information technology systems.

These requirements include:

• The business consultant or information technology consultant provides services through a corporation of which the consultant is either a director or a shareholder who is party to a unanimous shareholder agreement, or a sole proprietorship of which the consultant is the sole proprietor if the services are provided under a business name of the sole proprietorship that is registered under the Business Names Act.
• There is an agreement for the consultant's services that sets out the amount of and when the consultant will be paid, which must be equal or greater than $60 per hour, excluding bonuses, commissions, expenses and travelling allowances and benefits, or other hourly rate amounts.

This amendment comes into effect on January 1, 2023.

Expansion of Reservist Leave:

This section is amended to provide that an employee is entitled to reservist leave if they are participating in Canadian Armed Forces military skills training. The time an employee needs to be consecutively employed to be eligible is also reduced from six to three months.

This amendment came into effect on April 11, 2022.

Amendments to the Occupational Health and Safety Act (OHSA)

Naloxone Kits

Employers are required to provide naloxone kits where the employer becomes aware, or ought reasonably to be aware, that there may be a risk of workers having an opioid overdose at a workplace where that worker performs work for the employer. Employers are also required to comply with any prescribed requirements respecting the provision and maintenance of naloxone kits and training, including recognizing an overdose and how to administer the kits.

This amendment will come into force at a future date upon proclamation.

Increased Fines and Limitation Period

Bill 88 increases the fines for a contravention under OHSA for an individual from $100,000 to $500,000 and for a corporation convicted of an offence to $1,500,000. Further, a new section is added that provides that a director or officer who contravenes or fails to ensure the corporation complies with OHSA and its regulations, or any orders or requirements of inspectors, Directors and the Minister of Labour, is guilty of an offence and on conviction is liable to a maximum fine of $1,500,000 or imprisonment for up to 12 months, or both. For the purposes of determining the penalty, OHSA is amended to provide a list of aggravating factors.

In addition to any fine or imprisonment that is imposed if a person is convicted of an offence, the courts are now able to make any prescribed order.

The limitation period for instituting a prosecution under OHSA is also extended from one year to two years from the later of either the occurrence of the last act the prosecution is based on, or the day an inspector becomes aware of the alleged offense.

These amendments come into force on July 1, 2022.

New Digital Platform Workers' Rights Act, 2022

This new Act is intended to establish certain worker rights and protections to workers who perform digital platform work, regardless of whether those workers are employees (i.e., it will apply to digital workers who are contractors).

By digital platform work, this means work such as ride share, delivery, courier or other prescribed services by workers who are offered work assignments by an operator through the use of a digital platform. A digital platform refers to an online platform which allows workers to choose to accept or decline the above-described digital platform work. An operator refers to the person who facilitates the performance of digital platform work, through the use of the digital platform, but does not include temporary help agencies.

The Act includes a range of information that an operator must provide in writing to a worker. Examples of this information includes a description of how pay is calculated, if and how tips or other gratuities are collected by the operator, the recurring pay period, factors to determine work assignments, and whether a performance rating system is used and if there are consequences based on a worker's performance rating. The new Act will also provide that workers have a right to a recurring pay period and pay day, minimum wage in accordance with the ESA, and that an operator shall not withhold, deduct, or cause a worker to return amounts earned as tips or other gratuities, unless the operator is authorized to do so under the Act, or otherwise as prescribed.

The above information must be provided in a variety of scenarios, such as within 24 hours after an individual is given access to the digital platform, when offering a work assignment, within 24 hours of completion of a work assignment, within 24 hours after the end of the last day included in the calculation of the average performance rating, or where a worker does not complete a work assignment the worker agreed to perform.

The new Act will come into force at a future date by proclamation.

Key Takeaways

• Employers with 25 or more employees in Ontario will need to start considering and begin drafting what an "Electronic Monitoring" policy will look like for their organization to comply with the requirement to have a policy in place by October 11, 2022.
• Employers have an obligation to ensure that they have a naloxone kit and employees in charge of the kit have received proper training where there may be a risk of a worker having an opioid overdose at work.
• Digital platform operators will need to prepare for the coming into force of the Digital Platform Workers' Rights Act, 2022.

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