Our 2022 HR compliance “year in review” considers 5 key developments – all of which have ongoing implications for employers across Canada.
- Paid sick leave – The Covid-19 pandemic sparked greater discussion of paid sick leave.
- Gig workers – Gig workers are becoming a bigger part of the Canadian workforce and governments are taking notice.
- Transparency – The need for greater employer transparency is behind a wide-range of employment law reforms.
- New requirements – Governments are adding novel health and safety requirements in response to the changing workplace.
- French language protections – Employers with employees in Québec must ensure that they comply with new and/or expanded French language protections.
Compliance Works CEO, Lesha Van Der Bij, considers considers these 5 themes and the implications for employers and HR teams as they get ready for 2023.
#1 Entitlements to Paid Sick Leave
One of the legislative issues that repeatedly came up during the pandemic was the need for paid sick leave.
At the beginning of the pandemic, only 3 Canadian jurisdictions required employers to provide paid sick leave.
- A federal entitlement to 5 days of paid sick leave has been replaced with a more generous requirement (discussed below).
- Quebec workers are entitled to 2 days of paid leave after 3 months of continuous service, while
- Prince Edward Island workers are entitled to one day of paid leave only after 5 years of employment.
Several provinces responded by providing temporary reimbursement programs for absences due to COVID-19. While many of these programs have since expired, Ontario extended the entitlement to 3 days of paid infectious disease leave until March 31, 2023.
British Columbia added a permanent entitlement to paid sick leave to its employment standards legislation in 2021. B.C. employees are eligible for 5 days of paid sick leave after 90 days of employment.
This year, the federal government became the first jurisdiction in Canada to establish a robust paid sick leave program. Effective December 1, 2022, the government amended the Canada Labour Code (the Code) to entitle federally-regulated employees to accrue paid sick days each month – up to a maximum of 10 days of paid sick leave per calendar year. (See our earlier post for more details on the federal amendments.)
Bottom Line: The recent federal amendments only apply to federally-regulated workplaces, but they have helped to shine a spotlight on paid sick leave. Will these amendments be a harbinger of further changes to come? At the very least, we expect to see ongoing discussion of paid sick leave in legislatures across Canada in 2023.
#2 “Gig” Workers and the Expanding Definition of Employee
Another issue that gained more prominence during the pandemic was the growth of “gig” workers. A recent Statistics Canada report estimates that about 1 in 10 Canadians in the workforce (1.7 million people) are gig workers.
Gig workers tend to perform on-demand or task-based work, and have not been afforded the same employment protections as “traditional” employees. However, the growth of the gig economy has attracted the attention of governments across Canada, as they consider whether additional regulations are required. (For further discussion of the differences between gig workers and employees, see our earlier post.)
Ontario was the first province to pass legislation – the Digital Platform Workers’ Rights Act, 2022 establishes certain rights for workers who perform digital platform work (e.g., workers providing ride-share, delivery, or courier services for payment based on assignments through a digital platform). British Columbia and the federal government have launched consultations to consider whether certain employment entitlements should be extended to gig workers.
The federal government is also considering recommendations to amend the Code to clarify who is an “employee”, “independent contractor” and “dependent contractor”. Such changes could potentially expand who has a right to basic employment standards protections.
Bottom Line: With increased government scrutiny of the gig economy, it is likely that we will see additional regulation of what (to date) has been a largely unregulated component of Canadian workplaces. Even employers who are confident that they do not utilize “gig” workers should keep their eye out for potential amendments that may change (and possibly restrict) who they understand to be an independent contractor.
#3 Increasing Emphasis on Employer Transparency
A number of provinces in Canada passed legislation this year mandating greater employer transparency – i.e., requiring employers to provide employees with more information about their policies and practices.
Ontario employers with 25 or more employees must have an electronic monitoring policy and disconnecting from work policy. These requirements do not prohibit employers from electronically monitoring their employees or sending them work-related communications outside business hours. Rather, they require employers to be transparent and to provide employees with their policies on electronic monitoring and disconnecting from work. (For a detailed review of these requirements, see our earlier post.)
Newfoundland and Labrador is the latest province to pass pay transparency legislation, which promotes transparency by:
- requiring employers to include the expected pay in publicly advertised job postings;
- preventing employers from penalizing employees and job applicants who seek pay information or disclose their pay to another employee;
- requiring employers to collect and submit information in pay transparency reports.
Other provinces with pay transparency legislation on the books include Nova Scotia and Prince Edward Island, as well as federally-regulated workplaces. (Ontario also has pay transparency laws, but they have never been proclaimed into force.)
Prince Edward Island is the first Canadian jurisdiction to pass legislation prohibiting employers (subject to certain exceptions) from entering into a non-disclosure agreement to:
- conceal the details relating to a complaint of harassment or discrimination;
- prevent a lawful investigation into a harassment or discrimination complaint.
Bottom Line: Governments across Canada have been steadily increasing the transparency obligations of employers. For the most part, these requirements are relatively uncontroversial and low-risk for governments, while (at least) appearing to be pro-employee. So, we expect to see a continuing emphasis on employer transparency in 2023, which as noted above may take a variety of forms.
#4 Ongoing Updates to Health and Safety Rules
In 2022, governments across Canada lifted Covid-19 protocols, including vaccine and mask mandates. At the same time, some jurisdictions added some novel requirements that employers have not typically included in their list of health and safety obligations.
Ontario Bill 88 included amendments to the Occupational Health and Safety Act, which require employers to provide and maintain naloxone kits if they are aware or should be aware of a worker at risk of 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. This requirement, which is not yet in force, establishes a new duty for Ontario employers.
Per our earlier post, federal government proposed changes to Code regulations, which will require employers to provide free menstrual products to employees in federal workplaces. These new requirements will no longer be gender specific. The government notes that it is requiring menstrual products be provided in all washrooms to “ensure that the unique needs of non-binary individuals, transgender men, and intersex people are also addressed.”
Bottom Line: Ensuring the ongoing health and safety of Canadian workers requires governments to enact legal requirements that reflect the evolving nature of work. The pandemic made it clear that governments must respond quickly to new dangers in the workplace. While the pandemic appears to have abated, employers should continue to watch for amendments, which may expand their health and safety mandate.
#5 Minority Language Rights
Over the last year or so, we saw significant legislation aimed at establishing and/or expanding the rights of French-speaking workers in Québec.
The federal government’s Bill C-13 will (if passed) enact the Use of French in Federally Regulated Private Businesses Act – an Act that establishes French language rights for employees at federally-regulated private sector workplaces. Initially, this Act will only apply to workplaces in Québec, but in the future it may be expanded to Canadian regions “with a strong francophone presence”.
The new federal Act, which is still making its way through the House of Commons and Senate, will require employers to foster the use of French in their workplace, and create new rights for French-speaking employees, including rights to:
- work and be supervised in French;
- receive workplace communications and documentation in French, including offers of employment or promotion, notices of dismissal, collective agreements and grievances;
- use regularly and widely used work instruments and computer systems in French;
- file complaints regarding the language of work.
Québec’s Bill 96 establishes similar employee rights, including a requirement to ensure all employment documents and communications are written in French. Because Bill 96 was passed in June of this year, the clock is already ticking on these translation requirements, which must be completed by June 1, 2023.
Bill 96 also goes beyond Bill C-13 in many ways, including:
- prohibiting employers from making knowledge of a language other than French a job requirement; and
- protecting employees from discrimination and harassment because they only speak French.
For additional information on Bill 96, see our earlier post.
Bottom Line: It is important to remember that these new requirements are not limited to employers based in Québec. They apply to any employer with employees in Québec. All such employers should be thinking about the implications of Bill C-13 (if federally-regulated) and Québec Bill 96, and seeking legal assistance where required.
How Compliance Works Helps HR Professionals
Compliance with constantly changing employment laws and ongoing changes can be challenging and time consuming. Compliance Works not only explains current employment legislation, but also stays on top of new and emerging areas.
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Author: Lesha Van Der Bij, CEO and Co-Founder, Compliance Works
Lesha is a senior lawyer who spent many years of her legal career at major Canadian law firms reviewing legislation and creating easy-to-understand summaries for individual clients.