We recently presented a webinar with the Ontario HRPA titled “Navigating the Future: Key Employment Law Changes on the Horizon”. We covered many issues relevant to Ontario HR professionals, including changes that impact work from home, changes to sick leave, new requirements for job postings and the regulation of AI. It was a great event with over 1000 webinar attendees 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.
If you are an HRPA member and were unable to attend the webinar, you can access the recording here.
*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.
Sick Leave
Background
Post-COVID, sick leave has been one of the most frequent employment law changes – across the country.
Employees in Ontario are entitled to up to 3 days of unpaid sick leave per year. This is the minimum entitlement for employees and is included in the Employment Standards Act, 2000 (“ESA”) – employers may provide additional sick leave benefits. Prior to October 28, 2024, employers could ask an employee to provide a medical note as evidence to support their sick leave.
As of October 28, 2024, employers can no longer ask an employee to provide a note from a doctor, nurse practitioner or psychologist as evidence to support this sick leave (Bill 190, which introduced this change, was passed into law on October 28, 2024 and this change took effect immediately). This change only applies to the sick leave that is provided under the ESA.
Are part-time workers/casual workers/contract workers entitled to sick leave?
Part-time, casual and contract employees (unless they are true independent contractors) are all entitled to sick leave. The requirements under the ESA apply to all employees, regardless of whether they are full-time, part-time, casual, on contract, paid salary or paid hourly. It is important to remember this for all requirements and entitlements under the Act.
Is there a definition of sick leave? What constitutes “sick leave”?
The sick leave requirement is provided in s. 50 of the ESA and it entitles an employee to a leave because of a personal illness, injury or medical emergency. A sick leave is any leave taken by an employee in respect of a personal illness, injury or medical emergency.
If an employee takes a sick day before or after a statutory holiday, can we ask for a medical note?
No. If the employee’s sick leave falls within the 3 days that they are entitled to under the ESA, you cannot ask for a medical note even if they took a sick day immediately before or after a statutory holiday. You can ask for other evidence to support their sick leave, including asking them to sign their own attestation confirming that they were sick.
If an employee takes 4-5 days sick leave can we ask for a medical note? If we provide a greater benefit (more days or paid) can you ask for a medical note?
Yes, you can ask for a medical note to support a sick leave if you provide more than the minimum requirement under the ESA. The ESA provides that if an employer provides a greater benefit to an employee than the employment standard, the provision or provisions in the employment contract apply and the employment standard does not apply.
It may be unclear though whether the benefit that an employer provides is a greater benefit than what is provided under the ESA. You should obtain legal advice regarding your policies and benefits to determine whether they are in fact a greater benefit than what is provided under the ESA.
Should long-term illness leave come into effect, could employees treat this as a top up to employer paid leaves? Or would this apply only to employees that are not covered by employer paid plans?
Ontario has launched consultations regarding a new personal long-term illness leave under the ESA. At this time, this is only at a consultation stage. The government has not introduced any legislation regarding this leave.
If the long-term illness leave is introduced and comes into effect, it would be a minimum standard like all other standards in the ESA. This means that if an employer provides a greater benefit, then the employer’s benefit would apply and the leave provided by the ESA would not apply. If an employer provided a long-term leave that is a greater benefit than what is required under the ESA, employees would not be able to use the ESA leave as a top up.
However, if an employee is not covered by a plan that provides a greater benefit, that employee would be entitled to the long-term illness leave provided by the ESA.
If a sick leave has to be certified by a qualified health practitioner but you cannot ask for a medical note, how do you reconcile these? Long term sick leave requires medical note vs short term?
The consultation paper on the proposed long-term sick leave proposes that the long-term leave would have to be certified by a qualified health practitioner. This would only apply to the proposed long-term sick leave, not the sick leave that is currently provided in the ESA. These would be two different leaves and each one will have its own requirements.
The ESA provides many different types of leaves, including different types of sick/medical leave. For example, in Ontario there are 6 leaves of absence that relate to medical illness or injury of either the employee or their family – compassionate care leave, critical illness leave, organ donor leave, personal leave, pregnancy and parental leave, and sick leave. Each of these leaves has different requirements and some of these leaves continue to permit an employer to ask for a note from a qualified medical practitioner. The prohibition on asking for medical notes from a qualified health practitioner only applies to the current short term sick leave.
Job Postings
Background
Another focus of employment law change has been job postings. Currently in Ontario, the only limitation or restriction on job postings is under the Human Rights Code, which prohibits including a classification or qualification based on a prohibited ground of discrimination.
The Ontario government has introduced a number of changes that will impact publicly advertised job postings. These are included in both Bill 149 and Bill 190. Both of these Bills have now been passed into law but none of the changes to job postings are in effect yet. The government has solicited feedback on these changes and may provide some clarifications before the changes come into force. We are tracking these Bills closely and will notify our subscribers as soon as an in force date is announced.
What problems are the government trying to address with these changes?
There are a number of issues that the government is trying to address with these changes, but the biggest concern is transparency. Most of these changes are intended to provide the job seeker with more information so that they can make more informed decisions. In addition, the government identifies concerns raised by skilled newcomers who are having difficulty finding work due to employers’ “Canadian experience” requirements.
The Ontario government’s consultation paper on job postings identifies the concerns that they are addressing with these changes, including:
- Giving job seekers more certainty in the hiring process.
- Improving fairness and transparency in the hiring process for skilled newcomers and jobseekers who are trying to get into the workforce.
- Growing concerns about the ethical, legal and privacy implications of artificial intelligence (AI), as AI tools and algorithms are being adopted by Ontario businesses at a rapid rate.
- Concerns have about job ads that are posted that are not for immediate job vacancies, with applicants not being aware of this.
Where do we go to contribute to future consultations and updates on the Bills?
In Ontario, the government will post consultation papers on the Regulatory Registry. You can sign up for email alerts to receive a notification of consultation papers that may be of interest to you.
Will the new job posting requirements apply to confidential or internal job postings?
The new job posting requirements will only apply to “publicly advertised job postings”, which begs the question of what constitutes a “publicly advertised job posting”. As of right now, the government has not defined this term in the Bill. This is one of the questions that the government specifically sought feedback on in its consultation paper, and it has proposed the following definition in the consultation paper:
- “Publicly advertised job posting” means an external job posting that an employer advertises to the general public in any manner.
- This definition would not include recruitment campaigns, general help wanted signs or positions that are only advertised to existing employees of the employer.
The government sought feedback on this definition, specifically asking respondents whether they agreed with the definition and whether they thought it should be limited to electronic postings only. It will be important for employers to watch for regulations on this issue to see how the government ultimately defines a “publicly advertised job posting”.
What is the definition of a “vacancy”? For example, if you’re confidentially recruiting for a position someone is currently in, is that still a vacancy?
Currently, there is no definition of “vacancy”. It is possible that this question will be addressed once the government provides a definition of “publicly advertised job posting”.
Can you clarify the requirement to retain applications for job postings? Do we need to retain all the applications from job boards like Indeed or only those contacted for interview?
We don’t have much clarity on this requirement as of right now. Bill 190 provides that if an employer interviews an applicant for a publicly advertised job posting, the employer must provide the applicant with the prescribed information, and must retain copies of that information for 3 years. The use of the words “prescribed information” means that the government will be setting out this information in a regulation. We don’t yet know what that information will be.
What happens if you don’t comply? For example, if you still include Canadian experience requirement or fail to disclose salary?
Failure to comply with these requirements once they are in force will be a violation of the ESA, which is an offence under the Act. A person who violates the Act or regulations or does not comply with an order is liable, on conviction, for:
- if an individual, a fine of up to $100,000 and/or 12 months imprisonment;
- if a corporation, a fine of up up $100,000 for a first conviction, $250,000, for a second conviction and $500,000 for subsequent convictions.
An officer, director or agent of the corporation who permits the contravention is also liable on conviction for a fine or imprisonment.
In addition to offences, an employer may be subject to administrative penalties, the Ministry may issue an order requiring you to comply with the Act, and a person could file a complaint with the Ministry.
Work from Home
Background
We have seen a number of employment law changes related to remote work. Recent changes to the Occupational Health and Safety Act (“OHSA”) specifically address work from home. Significantly, as of October 28, 2024 the OHSA now applies to telework performed at a private residence.
Are there any changes to the Joint Health and Safety Committee requirement?
There are no changes to the requirement to have a Joint Health and Safety Committee (“JHSC”) when employees work at home, but there are some changes to how the JHSC may meet and to its communications.
You will need to count employees who work from home when determining whether you are required to have a JHSC. Employers with 20 or more workers must have a JHSC. JHSC’s must meet at least once every 3 months, but as of October 28, 2024 they are no longer required to meet at the workplace. They can now meet virtually.
Employers can now also post certain information electronically, including the names and work locations of the JHSC members (where a JHSC is required).
Does this mean workplaces can have a “digital” board? Can we remove the physical board that is traditionally placed in a common area?
This does mean that workplaces can have a “digital board”, provided it meets the requirements of the OHSA. Information, which may be posted in an electronic format, must meet the following requirements:
- the employer must provide 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.
While you can have a digital board, you may have to keep the physical board as well to meet your obligations under other legislation. For example, under the ESA you may be required to post notices related to administration/enforcement of the Act or copies of any report made by the officer in relation to an investigation.
Do the OHSA changes require a policy change? Any policies that need updated or created?
None of theses recent changes to the OHSA require a policy change.
Employer’s obligation regarding ergonomics for employees who work from home
In Ontario, the Ministry interprets an employer’s general duty to provide a safe work environment as including a legal duty to protect workers from musculoskeletal disorders. The Ministry further states that “hazards related to poor ergonomics must be treated the same as any other workplace hazard. This means they need to be: recognized and identified; assessed; eliminated or controlled”.
The recent employment law changes mean that an employer’s general duty to provide a safe workplace extend to workers who perform telework at a private residence. Currently there is nothing in the OHSA or any proposed amendments that would limit this obligation.
Compliance Works Helps HR Teams Stay on Top of Employment Law Changes
Employment laws are constantly changing, and staying on top of employment law changes can be challenging and time consuming. Compliance Works is always tracking HR legislation – so you don’t have to!
Contact us to Request a Demo or email us at info@complianceworks.ca to learn how a subscription to Compliance Works can help your HR team succeed.
