Ontario Bill 88 – More Changes for Employers

With the introduction of Bill 88, Working for Workers Act, 2022, the Ontario government made it clear that it is yet not done revamping the province’s workplace laws. Bill 88 follows last year’s flurry of changes to Ontario employment laws, with new requirements related to electronic monitoring, naloxone kits, and digital platform workers.

Here’s a quick recap of what employers need to know.

Electronic Monitoring

Ontario employers with 25 or more employees on January 1 of any year will have to develop another HR policy – an “electronic monitoring” policy. The policy must include the following information:

  • whether the employer electronically monitors employees, and if so:
    • a description of when and how the employer may electronically monitor employees; and
    • how that information can be used by the employer; and
  • the dates the policy was prepared and updated.

electronic monitoringEmployers must provide copies of the policy to each current employee within 30 days of preparing or updating the policy, and to each new employee within 30 days of them becoming an employee.

This new policy requirement is in addition to the “disconnecting from work” policy, where employers must outline their expectations with respect to issues such as responding to work-related emails or phone calls outside regular work hours, and using out-of-office notifications and/or voicemail messages.

Note re Transition Period: Typically, employers will have to develop these new policies by March 1, but there is a transition period in place for employers that already have 25+ employees:

  • electronic monitoring policies must be in place 6 months after Bill 88 receives Royal Assent (it is currently at Committee);
  • disconnecting from work policies must be in place by June 2, 2022.

Naloxone Kits

Employers will have to provide and maintain naloxone kits if they are aware, or  should be aware, of a worker at risk of having an opioid overdose at the workplace. Employers must also ensure that a worker near the kit is in charge of it and has received training on its use.

Note: The timing of this change is up in the air, as it will have to be proclaimed into force.

Digital Platform Workers

Bill 88 will establish an entirely new Act – Digital Platform Workers’ Rights Act, 2022 – for workers who perform digital platform work (i.e., providing ride share, delivery, courier or other prescribed services for paymentbased on assignments through a digital platform). This new Act, which will come into force on a date to be determined, includes requirements related to:

  • Information: Digital workers must be advised of how pay is calculated, if and how tips/gratuities are collected, pay periods, faBill 88ctors used to determine work assignments, and if and how it uses a performance rating system.
  • Pay: Digital workers have a right to a recurring pay period and pay day, minimum wage and tips/gratuities.
  • Access Removal: If a digital worker loses access to a platform, they must be advised in writing of the reason why they have been removed.
  • Reprisals: Digital workers have protection against reprisals (e.g., intimidation, penalties).
  • Records: Operators must retain specified information on each worker.
  • Director Liability: Directors will be jointly and severally liable for amounts owing to digital workers.
  • Enforcement: Detailed enforcement provisions mirror those in the Employment Standards Act, 2000 (ESA), including complaints, orders, collections, offences and prosecutions.

Other Upcoming Changes

Bill 88 included a few other changes worth noting:

  • Bill 88Health & Safety Fines: Maximum fines under the Ontario Occupational Health & Safety Act will be increased to $1,500,000 for directors or officers of corporations and to $500,000 for other individuals. Aggravating factors, such as previous convictions or non-compliance, attempts to conceal the offence or a failure to cooperate, will be considered when determining the amount of the penalty. In addition, the limitation period for prosecutions will be increased from one to two years.
  • New Exemptions: Business and information technology consultants who meet certain requirements will be exempt from the ESA. Specifically:
    • The consultant provides services as a sole proprietor or through a corporation of which they are a director or shareholder.
    • There is an agreement under which they are paid at least $60 per hour, excluding bonuses, commissions, expenses and travelling allowances and benefits.
  • Reservist Leave of Absence: This leave will be expanded to include employees participating in Canadian Armed Forces military skills training and the eligibility period will be reduced from six to three months of consecutive months of employment.

 


Also see our post regarding last fall’s changes to Ontario HR requirements: Ontario Making Significant Employment Law Changes