We recently presented a webinar with the Ontario HRPA titled “Charting What’s Next – Emerging Employment Law Trends for 2026”. We covered many issues relevant to Ontario HR professionals, including the regulation of AI, new sick leave requirements, understanding the new job posting requirements, and a recap on health and safety.
It was a great event with 1230 attendees (and 1562 total registrants – we broke an HRPA record!) and a lot of engagement through questions and chat. We weren’t able to answer all of the questions that were asked in the time that we had but promised we would respond to your questions. This post answers those questions.
*None of the information provided in this blog post is legal advice. This post is for information purposes only. If you have questions related to your specific workplace or policies, please consult a lawyer. Also, please note that these are all changes to Ontario law. They do not apply to Federally-regulated employers.
Job Posting Requirements
Background
As of January 1, 2026, Ontario employers with 25 or more employees on the day the job posting is posted must meet specific job posting requirements. “Publicly advertised job postings” are external job postings advertised to the general public in any manner, but they do not include:
- General recruitment campaigns that do not advertise a specific position
- General help wanted signs that do not advertise a specific position
- Posting for a position that is restricted to existing employees
- Posting for a position for which work is to be performed outside Ontario, or outside and in Ontario and the work performed outside Ontario is not a continuation of work performed in Ontario.
See our posts New Job Posting Rules: What Employers Should Know and Ontario Job Postings – New Requirements Come into Force Jan. 1, 2026 for more information.
Do the new job posting rules apply to a job that was posted back in December? Does the posting need to be updated if it is still posted?
Job postings that were posted before January 1, 2026 are not subject to the new rules and do not need to be updated. The new law is not retroactive and only applies to job postings that are posted as of January 1, 2026 or later.
What if a recruiter has less than 25 employees but the client has more? Must the recruiter disclose the use of AI and meet the other job posting requirements?
The job posting rules apply to the employer, but they apply even where an employer uses a recuiter. In this case, the employer must ensure the recruiter discloses the use of AI and meet all of the other job posting requirements. The rules related to job postings apply where the employer has 25 or more employees and they apply to publicly advertised job postings that are posted by an employer or on an employer’s behalf.
When hiring for a spring-summer seasonal business which will have 25 or more employees during that time but not during the winter when hiring is done, is there a requirement for compensation to be disclosed? And if, during the season, there are positions to be replaced will the new legislation then need to be followed?
The legislation requires you to look at the number of employees at the time that the job posting is posted. During the off-season when you have fewer than 25 employees, you are not required to meet the job posting requirements. If, however, you need to post again during the season when you have more than 25 employees, those postings must comply with the job posting requirements.
Does the number of employees only matter for Canada/ Ontario? If our parent company is in the United States, do the employees count there in terms of number?
The number of employees is the total number of employees employed by the employer, not just those employed in Ontario.
What motivated the government to require the disclosure of AI in job postings?
Many of the Ontario government’s recent changes to the Employment Standards Act, 2000 (“ESA”) have focused on transparency. The new job posting requirements are largely about transparency. With respect to AI specifically, the government said the following in its consultation paper on the new job positing requirements:
To strengthen transparency for job seekers given that there are many unanswered questions about the ethical, legal and privacy implications that these technologies introduce, employers who advertise a publicly advertised job posting and who use AI to screen, assess or select applicants for the position would be required to include in the posting a statement disclosing the use of the AI.
If we are not using AI, would we still need to clarify this in the job posting?
No, you are only required to disclose if you are using AI to screen, assess or select applicants.
What if a BC employer is recruiting an Ontario-based employee? Must they disclose compensation under the Ontario Employment Standards Act, 2000?
The ESA applies to work performed in Ontario, so if you are a BC employer but hiring an employee to perform work in Ontario, you will be required to disclose compensation and comply with all other job posting requirements.
Do termination and/or severance payments have to be included in the compensation calculation when disclosing compensation?
No, termination and/or severance payments do not have to be included in the compensation calculation.
Regarding compensation, can we post the minimum of the range and say that it’s commensurate with experience and skill level?
If the job posting requirements apply to you, then posting a minimum range and saying the compensation is commensurate with experience would not meet the requirements. The legislation requires you to post the compensation or compensation range, and that range cannot be greater than $50,000. You must provide a specific compensation amount, unless the compensation or high end of the compensation range is over $200,000.
Do we need to separately list the wages, for example, base salary, vacation etc?
You do not need to separately list the components that make up compensation. You can provide a global number that takes into account all elements of compensation that you must include.
If a posted job includes housing allowance/room and board, car allowance, or an annual profit share/performance award, does that need to be included as part of the compensation range? Or is the compensation range strictly salary?
You are required to disclose the “compensation” range or “compensation”. “Compensation” is a defined term, and it is defined as “wages”. “Wages” is also a defined term with a specific meaning under the ESA. Wages means:
- monetary remuneration owed to an employee under the terms of an employment contract;
- any payment that must be made under the Act; and
- any allowances for room or board under an employment contract.
“Wages” specifically does not include:
- tips or gratuities;
- discretionary gifts or bonuses that are not related to hours, production or efficiency;
- expenses and travelling allowances; or
- employer contributions to a benefit plan and payments to which an employee is entitled from a benefit plan, other than payments that are required to be made on termination.
It is important to clearly understand your compensation structure and which components of your compensation structure meet the definition of wages.
All monetary remuneration that you agree to pay under an employment contract (whether written or oral) are wages. Allowances for room and board are wages and must be included in your calculation of compensation.
Car allowances, profit share, performance bonuses etc. may or may not have to be included in compensation depending on exactly how they are structured, the wording of your agreements, and your actual practice regarding these payments. It is important to get legal advice on your specific facts to understand whether or not these amounts must be included when you disclose compensation.
Does “bonus” and “incentive” fall under wages? What is the difference between “discretionary” and “non-discretionary” bonuses?
A discretionary bonus or incentive that is not related to hours, production or efficiency does not fall under wages. Whether or not a particular bonus program is discretionary or not is a legal question and it depends on the specific wording and structure of the bonus. Generally, a discretionary bonus is one that an employer may or may not give in any given year and there is absolutely no contractual entitlement to the bonus. You should obtain legal advice to determine whether any particular bonus or incentive would be deemed discretionary or not.
Are we required to post the compensation range for a sales role with base pay of less than $200k but OTE more than $200k?
This is a good question, and unfortunately one with no clear answer right now. My view is that compensation should be disclosed in this scenario because the compensation may not reach the $200,000 threshold for non-disclosure.
Is there a fine for non-compliance if you don’t disclose compensation or otherwise fail to comply with the job posting requirements?
Yes, there are a number of enforcement measures that may apply if you don’t disclose compensation or otherwise fail to comply with the job posting requirements.
First, failure to comply with any of the job posting requirements is a violation of the Employment Standards Act, 2000. Violations of the Act can lead to the any of the following:
- Penalties starting at $250.
- Complaints can be filed by anyone. If a complaint is filed, employment standards officers may investigate.
- Violations of the Act can also be prosecuted as offences. If you are found guilty of an offence, you are liable to fines of up to $100,000 or 12 months imprisonment for an individual, fines of up to $500,000 for a corporation (starting at $100,000 and increasing for subsequent convictions).
What constitutes an “interview” for the purpose of the requirement to notify interviewees of a hiring decision within 45 days?
An “interview” is defined in the Rules and Exemptions Re Job Postings Regulation as:
…a meeting in person or a meeting using technology, including but not limited to teleconference and videoconference technology, between an applicant who has applied to a publicly advertised job posting and an employer or a person acting on behalf of an employer where questions are asked and answers are given to assess the applicant’s suitability for the position, but does not include preliminary screening before the selection of applicants for such a meeting.
The definition is broad and includes any form of meeting, in person or otherwise, where questions are asked and answers are given to assess the applicant’s suitability for the position. Importantly, the interview does not have to be conducted by the employer directly – a meeting between an applicant and a person acting on behalf of an employer (ie. a recruiter) is still an interview.
Is there any definition that distinguishes between a screening call and a first interview?
A preliminary screening is not an interview. While preliminary screening is not specifically defined, it is referred to as something that takes place before the selection of applicants to attend a meeting where questions are asked and answered. The exact line between a preliminary screening and a first interview is not clear under the legislation.
If we have a job fair and do on the spot interviews, do we need to contact every candidate who attended to let them know they were not selected?
This is a bit of a grey area. On the spot interviews at a job fair likely fall within the meaning of a preliminary screening and would be excluded from the definition of an interview. When conducting on the spot interviews at a job fair it would be helpful to make it clear that the purpose of your meeting is to do a preliminary screening to identify potential candidates to interview. To support this, you would also want to have a standard list of preliminary screening questions that you are asking. As noted though, this is a grey area – a conversation could easily transition from a preliminary screening to an interview.
Would the obligation to notify interviewees only apply to in-person interviews?
No, the obligation to notify interviewees applies to in-person interviews as well as interviews conducted over telephone or video-conference, or any other means of technology.
Does the 45 day requirement to communicate a “hiring decision” mean communicating the role is filled/hired (which could take several months), or would it refer to the decision on whether or not the candidate is moving forward in the recruitment process, i.e., the role not filled yet but they are not moving forward?
The regulation specifically provides that, within 45 days of the last interview (if more than one) you must tell the interviewee “whether a hiring decision has been made in respect of the publicly advertised job posting”. The language is a bit unclear – does it mean you have made a hiring decision with respect to the specific applicant, or a hiring decision in respect of the position (ie. have you made a decision to hire a specific candidate)?
The intention of the provision is to prevent the ghosting of candidates and to provide transparency to applicants. For that reason, my view is that the better approach is to view the requirement with respect to the specific candidate. So, within 45 days of your last interview of a candidate, you need to notify the candidate whether or not you have made a decision to hire them. You may not have completed your hiring process, but if you have decided you are not moving forward with that specific candidate, you should notify the candidate of that decision.
Is the requirement to notify candidates of interview result a company responsibility versus recruiter acting on behalf of the employer?
It is the responsibility of the employer to notify interviewees. The legislation specifically provides that this is the employer’s responsibility. An employer who retains a recruiter could require the recruiter to notify the interviewees on behalf of the employer, but ultimately it is the employer’s responsibility and if the recruiter does not fulfil that obligation, it is the employer who would be responsible under the Act.
For the prohibition on Canadian experience requirements, what if the company does not require the candidate to have Canadian experience but the insurance company does? For example, when hiring an AZ driver. It is federally regulated but operates out of Ontario.
First, the prohibition on including Canadian experience requirements in publicly advertised job postings only applies to employers who are Ontario regulated. If you are a Federally-regulated employer, this requirement does not apply.
If you are subject to the Ontario legislation, this is a bit of a grey area and I would recommend obtaining legal advice based on your specific fact situation. Generally though, my recommendation would be to frame the requirement in a way that complies with the legislation. For example, providing that “the successful candidate must meet the requirements of our insurer”.
Would referencing professional designations such as CHRP or P.Eng be considered Canadian experience?
This is another grey area. The ESA provides “No employer who advertises a publicly advertised job posting shall include in the posting or in any associated application form any requirements related to Canadian experience”. This is broadly worded and arguably would extend to Canadian professional designations. However, the government has stated that “This ESA job posting prohibition does not apply to professional licensing or registration requirements”. While the government makes this statement on its website, this exclusion is not expressed in the legislation.
Would asking for having experience working in a First Nations Community violate the Canadian experience prohibition?
This is a good question, without a clear answer. I expect that this is not the type of requirement the government intended to prohibit, but the language in the ESA is broad and could be read as prohibiting this.
Under job posting requirements, the record retention indicates 3 years for every publicly advertised job posting and associated application forms. Can you clarify if all applications/resumes need to be retained for 3 years or only the applicants that were contacted?
The legislation requires an employer to retain the publicly advertised job posting and any associated application form (ie. an application form created by the employer), it does not require the employer to retain applications or resumes received in respect of the job posting.
As freelance recruiters, we sometimes get confidential C-level mandates where the client doesn’t want their company name disclosed. With recent legislative changes pushing for more transparency, how do you practically navigate this without compromising trust on either side?
Currently, there is no requirement to disclose the client’s company name. If the government were to introduce changes to the law that would require such disclosure, you could participate in consultations or otherwise raise your concerns with the government before the legislation is passed.
Leaves of Absence
Leaves of absence are complicated. For an overview of Canadian leaves of absence, see our guide – Leaves of Absence in Canada: What Employers Need to Know.
Can you ask for a doctor’s note after an employee has been absent from work for 3 days, or if the employer offers paid sick leave?
Yes, the prohibition on medical notes only applies to the 3-day leave of absence provided for in the ESA. If you provide additional unpaid leave, you can require a medical note in respect of any days beyond the 3 days provided for in the ESA. Similarly, if you provide a greater benefit than what is provided for in the ESA, such as paid leave, you can ask for a medical note.
When does the long-term sickness leave come into effect?
The new 27-week long term sickness leave came into effect in Ontario on June 19, 2025.
Related to the 52 week period for leaves, does that mean the calendar year, or 52 weeks from the start of the first leave?
The 52 week period is from the start of the first leave, not the calendar year.
If the long term sickness leave does not have to be taken consecutively, does that mean an employee can take 189 days separately throughout the year?
The 27 week long term sickness leave does not have to be taken consecutively, but it is unlikely that it could be taken in 189 separate days throughout the year due to the requirements under the leave. The long term sickness leave must be in resect of a serious medical condition and must be supported by a certificate from a qualified health practitioner that sets out how long the employee will be unable to perform their work.
Can you please clarify regarding leaves and how they are different from EI leaves for Parental and sick?
The ESA provides for many different leaves of absence which apply in different circumstances. When an employee is sick, you need to determine which leave of absence applies. An employee is entitled to 3 unpaid days for sick leave (referred to as short-term sick leave) and up to 27 weeks for a serious medical condition that requires a longer period of absence.
The upcoming adoption/surrogacy leave is similar to the current pregnancy leave and will be in addition to parental leave. An employee who adopts a child or has a child through surrogacy will be entitled to both the adoption/surrogacy leave plus parental leave following the end of the adoption/surrogacy leave.
Health and Safety
How often do the washrooms have to be cleaned?
The legislation does not specify how often washrooms have to be cleaned. Section 25.3 of the Occupational Health and Safety Act provides that “an employer shall ensure that the washroom facilities, if any, that are provided by the employer for the use of workers are maintained in a clean and sanitary condition”. The frequency of cleaning may vary, but it must be often enough to ensure that the washrooms are kept clean and sanitary.
How long do we have to keep washroom cleaning records for?
Neither the Act nor the regulations specify how long an employer must keep washroom cleaning records, but the regulation provides that the record must include the date and time of the 2 most recent cleanings of the washroom.
Do the cleaning records need to be posted anywhere?
Yes, the records must be posted in a conspicuous place in or near the washroom to which the record pertains where it is likely to come to the attention of the workers, or it must be posted electronically where it can be accessed by workers and workers must be provided with direction on where and how to access the record.
Is the fact that the cleaning company has done the washrooms a record?
The record must meet the requirements of the legislation, which means it must include the date and time of the two most recent cleanings.
For the bathroom cleaning – how many staff are required before this is effective? If working as a support professional in a home, is this effective?
There is no minimum employee number applicable to the washroom cleaning requirements, however, the Occupational Health and Safety Act does not apply to work performed in a private residence, other than telework. For that reason, the washroom requirements would not apply to an employee working as a support professional in a private residence.
Does the washroom piece only apply to constructors?
No, the requirements regarding washrooms apply to all employers. Section 25.3 of the Act provides that these requirements apply to all employers, and s. 23.1 sets out requirements for constructors.
If you rent your office space and the washroom maintenance and cleaning is completed by the property management, do you still need cleaning records, or should we ensure they are keeping records?
The obligation is on the employer to ensure that washrooms that are provided for their employees are clean and the required records are kept. The employer is required to keep records, however, these could be provided by the property management company.
Does keeping records for washroom maintenance include private washroom in a office?
There is no exclusion from the washroom requirements for a private washroom in an office. If the washroom is provided by the employer for the employee’s use, the cleaning and record keeping requirements apply.
If telework is covered, what is an employer to do if an employee is working from home, runs a personal errand either out of the house or in the house and injures themself?
If an employee who works from home injures themself, you should contact a lawyer for legal advice. Generally, if the employee was injured while doing something not related to their work, that will not be considered a work injury. These cases are very fact specific though, which is why it is important to obtain legal advice.
What information can be posted electronically, provided all employees can access?
Employers may post the following in an electronic format:
- the Act;
- any regulatory guidance explaining workers’ rights, responsibilities and duties;
- at workplaces where a committee is required, the names and work locations of the committee members;
- the employer’s occupational health and safety policy and workplace harassment and violence policies;
- the Workplace Safety and Insurance Board’s annual summary in an electronic format.
Information which may be posted in an electronic format must meet the following requirements:
- the employer provides workers with direction on where and how to access the information;
- the information is posted in an electronic format that can be readily accessed by workers in the workplace.
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