You can read our submission here.

In brief, we are proposing a private right of action to courts for abuse of dominance. This has already worked in the US and the EU. It’s being used in the UK, Australia, New Zealand, South Korea, Argentina, and Saudi Arabia. By adding three words to the Competition Act, Minister Champagne can increase innovation, protect small towns, and allow billions of dollars in compensation to be recovered by consumers who have been wronged. We urge Minister Champagne to adopt these changes.

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Written Policy on Disconnecting from Work  

Under the Employment Standards Act, 2000, every employer in Ontario that employs 25 or more employees will be required to have a written policy in place for all employees with respect to disconnecting from work.

Disconnecting from work means “not engaging in work-related communications, including emails, telephone calls, video calls or the sending or reviewing of other messages, so as to be free from the performance of work”.

Employers will have until June 2, 2022 to develop and implement this policy and provide employees with a copy.

As yet, there are no specific enforcement mechanisms or consequences for employers who breach the terms of their own disconnecting from work policies.

In developing disconnecting from work policies, employers will need to consider how to eliminate communications outside of employees’ scheduled working hours. This need not be complicated. For example, many email service providers such as Outlook provide options to delay sending messages until a certain date and time allowing employers the flexibility to write emails outside of normal working hours if they wish, but to schedule the delivery of those emails during employees’ working hours.

Regardless of the lack of enforcement mechanisms outlined in the legislation, employers in Ontario should nevertheless be cautious about their work-related communications as they may trigger potential overtime pay obligations when employees perform work outside of their regular hours. Likewise, employees are encouraged to record all the hours they work, including those that are done outside of normal working hours at the request of their employer to ensure they are properly and fairly compensated.

More detail will likely follow when regulations to the Employment Standards Act, 2000  are updated. In particular, it is likely that certain groups of employees will be exempt. These may include the same groups of employees who are already exempted from various parts of under the Act, such as information technology professionals, registered medical practitioners, and certain salespeople who receive commissions.

Prohibition on Non-Compete Agreements

Effective October 25, 2021, employers can no longer enter into a non-competition or “non-compete” agreement with an employee.

These are defined as “an agreement, or any part of an agreement, between an employer and an employee that prohibits the employee from engaging in any business, work, occupation, profession, project or other activity that is in competition with the employer’s business after the employment relationship between the employee and the employer ends”.

There are two exemptions from this absolute prohibition.

The first exemption extends to executive-level employees who hold the job title of:

That list is non-exhaustive and the exemption will apply to “any other chief executive position”.

The second exemption relates to scenarios involving the sale of a business. If as part of the sale, the purchaser and seller enter into an agreement that prohibits the seller from engaging in any business, work, occupation, profession, project or other activity that is in competition with the purchaser’s business after the sale and, immediately following the sale, the seller becomes an employee of the purchaser, the prohibition on non-competition agreements does not apply.

From a practical perspective, these legislative changes are unlikely to alter the course of the law in this area. At common law, non-competition agreements in Ontario were rarely upheld by courts in respect of most employees. These changes mean there is no longer any debate about this issue.

Employers who have non-competition agreements as part of their standard form employment contracts for non-executive employees should amend their employment contracts as soon as possible to remove them. Although the legislation provides that all non-competition agreements are void effective October 25, 2021, there are potential and serious consequences of the legislation if employers do not proactively remove non-competition agreements from existing employment contracts. For example, employees might be able to argue that the presence of a non-competition agreement in their employment contract renders their entire employment contract void and unenforceable.  This could result in heightened liabilities for employers when terminating the employment of their employees.

Licencing of Temporary Help Agencies and Recruiters

Among the more substantial changes to the Employment Standards Act, 2000 are the introduction of licencing and other requirements for temporary help agencies and recruiters.

In order for temporary help agencies to be licenced they will have to provide, among other things, statements acknowledging their obligations and the various prohibitions under the Employment Protection for Foreign Nationals Act, 2009, in addition to paying a fee and a security for potential unpaid wages. The amount of the licencing fee and security has not yet been set out in the regulations to the Employment Standards Act, 2000.

Licences will be capable of being suspended or revoked based on grounds that will be determined by the Director of Employment Standards.

Following the implementation of these changes, employers will be required to retain only licenced temporary help agencies and recruiters.

Access to Washrooms for Gig Workers

One of the additional changes introduced by Bill 27 is an update to the Occupational Health and Safety Act which will require the owner of a workplace, such as a restaurant or other business, to provide access to a washroom for any worker who is picking up or dropping off an item for delivery.

Systemic issues facing gig workers, such as their lack of entitlement to minimum wage and other basic employment standards, were not addressed in Bill 27, however, those issues are likely to become a topic of discussion and potential legislative reform in light of The Future of Work in Ontario Report. This report recommends that Ontario: “create and recognize the dependent contractor category for gig or platform workers in the app-based space and give this category of worker basic employment rights, such as termination pay, minimum wage, minimum or core benefits, regular payment of wages, pay stubs for pay accountability and notice of termination with severance entitlement”.[1]

Please contact Louis Sokolov at lsokolov@sotos.ca to discuss Bill 27 or issues concerning gig workers.

[1] The Future of Work in Ontario Report, p. 68, Recommendation 15.

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While it may seem like a straightforward decision for all employers to adopt a COVID-19 vaccination policy, there is no one-size-fits-all approach and answers to questions surrounding whether vaccination can be made mandatory in workplaces fall squarely in a grey zone.

To help make sense of this tricky area, here are factors that employers who are considering adopting a COVID-19 vaccination policy should take into account:

Should Employers Have a Mandatory COVID-19 Vaccination Policy?

Employers across Canada have a legal obligation under occupational health and safety legislation to provide their employees with safe workplaces and to take all reasonable precautions to protect employees from getting a work-related illness.

For many employers, implementing a COVID-19 vaccination policy may be one effective way of meeting this legal obligation and providing a safe workplace for all staff in addition to clients and members of the public who may enter the workplace.

The vaccines available in Canada are currently thought to be between 80% and 95% effective in either preventing infection, or preventing symptoms of COVID-19 in the vaccinated person. More studies and time are needed to understand exactly why the vaccines are effective and whether vaccination also affects potential asymptomatic transmission of COVID-19 between a vaccinated person and a non-vaccinated person.

Although immunization is one of the best ways of preventing COVID-19 transmission and infection in workplaces, it does not mean that a vaccination policy will be necessary or justified for every workplace.

Is a Workplace COVID-19 Vaccination Policy Necessary or Justified?

It depends. Not all workplaces pose the same level of risk of infection and transmission either to employees or to others who enter the workplace.

Health care institutions, shelters, child care centres, educational institutions, industrial settings (including factories), retail establishments, hospitality sector settings (including restaurants), grocery stores, and office settings all have different risk factors to consider in determining what a reasonable policy might look like.

Employers should consider the following in determining whether a policy is necessary or justified:

• Ability to work from home. Can employees perform their job by working remotely at home? If yes, is it necessary to require vaccinations and order employees to return to the physical workplace? Or is it possible to continue with a work from home arrangement while public health guidelines continue to recommend it? Are there issues concerning staff productivity that cannot be addressed other than by a return to the physical workplace?
• Physical proximity. If employees cannot work remotely from home, can they safely practice physical distancing, masking, and good hand hygiene at work? Do the requirements for physical distancing, masking, and good hand hygiene pose a significant impediment or challenge to operating the employer’s business?
• Vulnerability of clients or members of the public served. Does the workplace involve the provision of care or services to a vulnerable group? (e.g. healthcare employees in a long-term care setting)
• History of workplace transmission. Have employees or anyone else entering the workplace become infected with COVID-19? Is immunization likely to significantly alter the current risk of infection in the employer’s particular workplace?
• Timing of vaccination: What is the demographic of the workplace? Do all employees fit within one of the groups given priority status in receiving a vaccine in Canada? Or will certain employees become vaccinated sooner than other employees and receive preferential treatment because of their immunization status?
• Available healthcare infrastructure. Is the workplace situated in an area with reduced access to healthcare infrastructure? Is the workplace situated in a COVID-19 “hotspot”?
• Unionized setting. Is there a collective agreement and/or a joint health and safety committee that should be consulted and have input into the development of the policy?

Employers should avoid boilerplate policies that do not take into consideration the specific circumstances of their workplace. A policy for a healthcare or industrial setting in which employees cannot work remotely and have challenges practicing physical distancing and other preventative measures will necessarily look much different than a policy for an office setting in which employees can work remotely for the foreseeable future.

As employers consider drafting their policies, it should be kept in mind that it is unclear how courts or boards of arbitration may respond to any potential legal challenges to vaccination policies brought forward by unions on behalf of employees, or employees themselves in tribunals or courts.

In the past, some unionized employees have successfully challenged vaccination policies implemented by employers. For example, in the case of Sault Area Hospital and Ontario Nurses’ Association, 2015 CanLII 55643, the Ontario Nurses Association objected to the implementation of a “vaccinate or mask” policy that required healthcare workers in a hospital setting to wear surgical/procedure masks each year throughout the five to six month flu season if they had not received vaccination for influenza. The union’s position was that the policy was an unreasonable exercise of a management right. The arbitrator agreed with the union after hearing from several leading experts in epidemiology and the employer was not permitted to implement its policy.

However, COVID-19 is much more lethal than the flu and there are indications that arbitrators and courts may reach different conclusions about workplace policies relating to COVID-19. In Caressant Care Nursing & Retirement Homes v Christian Labour Association of Canada, 2020 CanLII 100531, the union challenged the employer’s policy requiring mandatory testing of all staff at a retirement home for COVID-19. The union argued that COVID-19 testing is painful and a serious invasion of an employee’s privacy. The arbitrator disagreed, holding that in weighing the intrusiveness of the COVID-19 test against preventing the spread of COVID in a retirement home, the employer’s policy was a reasonable one.

Can Employers Make Vaccination Mandatory For Every Worker?

The short answer is, no.

Employers can strive for 100% vaccination rates in their workplace, but there are limits to making a vaccination policy mandatory for every employee.

Employees may refuse to become vaccinated and must be accommodated by their employer to the point of undue hardship if the basis of their refusal is related to:

Medical reasons: Employees who cannot receive a vaccination because they may suffer an adverse reaction (e.g. employees with allergies at risk of anaphylaxis), employees who take medications that are contraindicated with the vaccine, or employees who are otherwise advised by medical practitioners to not take the vaccine, may refuse to become vaccinated.

Religious or moral reasons: Employees who object on the basis of religion or freedom of conscience may also refuse to become vaccinated.

Employees may be required to provide documentation to an appropriate person within the employer’s organization to substantiate their refusal to become vaccinated.

Employees’ Charter rights and human rights can engage complex considerations on the part of an employer. Employers should seek advice to understand how to meet their obligations to employees who cannot or will not become vaccinated on these grounds.

Employees who cannot become vaccinated or refuse to become vaccinated should be prepared to discuss what accommodation they are seeking from their employer and recognize that their requested accommodation may not be provided, but other reasonable alternatives may be provided instead.

Generally speaking, if an employee cannot be accommodated by being provided with modified work or an accommodation in the form of working from home, or working different hours, then an employee is entitled to take a job-protected unpaid infectious disease leave in connection with the COVID-19 pandemic. In Ontario, employees are entitled to remain on infectious disease leave until at least July 3, 2021, or potentially longer if they meet certain conditions.[1]

While valid exemptions from vaccination must be respected, vaccine hesitancy will also give rise to challenges in the workplace. Although these types of concerns will not trigger the same obligations in the form of accommodation, employers should seek to understand their employees’ concerns and determine if they will choose to hold townhalls or other information sessions to strongly encourage vaccination and provide credible information concerning its safety and efficacy.

Can Employers Require Proof of Vaccination?

Several sectors in Canada are contemplating “immunity passports”, or standardized documentation that proves a person has been vaccinated in order for that person to access services such as airline travel, or attending sporting or entertainment events with large groups in attendance.

While there is a precedent for requiring proof of immunization in certain contexts such as travel (e.g. yellow fever certificates for entry to countries with persistent transmission) and education (e.g. vaccination of school aged children against certain infectious diseases), the application of an immunity passport in a workplace setting is a new one that may present challenges.

Before employers invest in apps or other programs designed to verify employees’ vaccination status, they should consider the following:

Form of proof of immunization: Which documents will be considered valid in substantiating vaccination? Will employees be required to undergo anti-body testing? Will medical certificates from healthcare providers be required? What information must be included in a medical certificate? Who will pay for anti-body testing and/or medical certificates?

Privacy of personal health information: Who is gathering employees’ personal health information regarding their immunization status and what protections are in place to safeguard the privacy of the information? Who within the employer’s organization will have access to the personal health information?

How proof of immunization will be used: What privileges or responsibilities will employees who provide proof of vaccination receive? What privileges or responsibilities will be withheld from employees who have not been vaccinated or who do not provide proof of vaccination? Will this cause morale issues?

If employers choose to implement a workplace COVID-19 vaccination policy and collect proof of immunization and other personal health information belonging to their employees, they must ensure that strict privacy controls over the information is maintained and that the information is shared with as few people as possible and only for the purpose of managing attendance at the employer’s premises.

Can Non-Vaccinated Employees Have Their Employment Terminated?

Whether employers can make vaccination a condition of ongoing or new employment is a question that can only be answered by looking at the full context of the workplace.

Requiring vaccination as a condition of employment may be a justifiable or reasonable requirement if the circumstances of the workplace make it impossible for employees to perform their jobs remotely and other factors make the workplace one that is at high risk of transmitting COVID-19 in the workplace.

Some employers may consider revising employment contracts to make vaccination mandatory, except in the case of the valid exemptions described above. If employers choose this approach, they should consult with legal counsel to ensure the new contracts will be enforceable.

Bottom Line Practical Advice for Employers

Implementing a workplace COVID-19 policy requires careful consideration. Employers should assess the particular circumstances of their workplace and consult their employees to determine their present intentions on receiving, or not receiving, the COVID-19 vaccine once it becomes available to them. Surveys determining employees’ vaccination willingness should be anonymous.

If employers determine that a vaccination policy is necessary, the logistics of how information and expectations concerning vaccination will be communicated to employees and how proof of immunization will be collected should be determined well in advance. Internal processes for employees requesting workplace accommodations for valid exemptions, and the drafting of any new or revised employment contracts should also take place early in the process.

Finally, employers should keep in mind that even if they are successful in achieving high rates of vaccination within the workplace, because the available COVID-19 vaccines are not 100% effective and their effect on asymptomatic transmission is unclear, other prevention measures including physical distancing, masking, and good hand hygiene should remain in place in workplaces until public health guidelines change.

For assistance with COVID-19 employment related questions, please contact Louis Sokolov. Louis regularly provides employment law advice to our clients. Louis can be reached directly at 416.572.7316 or lsokolov@sotosllp.com.

[1] Infectious Disease Emergency Leave, O. Reg. 228/20.

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Constructive Dismissal Under the ESA and at Common Law

Employers do not have an unrestricted ability to temporarily lay off employees from their employment. In order for an employee to be temporarily laid off, it must be an express term of their employment contract that the employer is entitled to place the employee on temporary lay-off and recall them at a later date.

These laws are intended to promote job stability and protect employees from their employers improperly laying them off. Employers that place employees on temporary lay-off without the proper contractual provisions in place, or, employers that reduce employees’ hours of work or overall remuneration by 20% or more, are vulnerable to a claim by an employee for constructive dismissal.

The New Infectious Disease Emergency Leave Regulation under the ESA

On May 29, 2020, the Ontario government introduced a new regulation to the Employment Standards Act, 2000 which removes employees’ protection from improper temporary lay-offs and reduced hours and remuneration, and expands employers’ power to implement such changes unilaterally.

Under the Infectious Disease Emergency Leave[1] regulation a temporary reduction or elimination of an employee’s hours of work by their employer for reasons related to COVID-19, or, a temporary reduction in an employee’s wages by their employer for reasons related to COVID-19 will be deemed to not constitute a constructive dismissal under the Employment Standards Act, 2000. [2]

The regulation also converts temporary lay-offs during the COVID-19 pandemic to “infectious disease emergency leave” [3], which is an unpaid leave under the Employment Standards Act, 2000 that was recently created to allow employees to take an unpaid leave of absence from work due to COVID-19 related reasons. This effectively eliminates employees’ ability to claim constructive dismissal if they were either improperly temporarily laid off, or, if their temporary lay off exceeded 13 weeks.

Time Limits for Relying on the Regulation

Employers may only rely on the new regulation for imposing temporary lay-offs or unilaterally reducing hours or wages for the period of time beginning on March 1, 2020 and ending on whichever date is six weeks after the provincial declaration of emergency order is terminated. For example, if the province of Ontario terminates the declaration of emergency order on July 3, 2020, employers could continue to rely on the regulation until August 14, 2020 after which point the usual employee protections under the Employment Standards Act, 2000 will resume.

One time-based exception to the application of the regulation is for employees who, as of May 29, 2020, had already been on temporary lay off for a period longer than 13 weeks in a 20 week period.[4]

Certain Constructive Dismissal Claims May Survive

Notwithstanding the introduction of this regulation, employees may continue to advance constructive dismissal claims in a number of scenarios.

Employees that are exempt from the coverage of the Employment Standards Act, 2000 and unionized employees are not subject to the regulation. In the case of unionized employees, the terms of the collective agreement provisions will continue to apply in governing the terms of their employment.

One area of uncertainty concerns whether employees with contracts of employment governed by the common law, such as employees without any written employment contract, may be permitted to advance a claim for constructive dismissal at common law and argue that the new regulation does not apply to them. This argument has not yet been tested in courts or tribunals and it remains to be seen how the regulation may be interpreted in that context.

[1] Infectious Disease Emergency Leave, O Reg 228/20.
[2] Infectious Disease Emergency Leave, O Reg 228/20, s. 7.
[3] Infectious Disease Emergency Leave, O Reg 228/20, s. 4(1), s. 6(1).
[4] Infectious Disease Emergency Leave, O Reg 228/20, s. 6(2) and s. 7(2).

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On March 17, 2020, the Ontario government declared a province-wide state of emergency that will affect how employers do business in nearly every sector of the economy.

In response to these unprecedented measures, the Ontario government has proposed legislation to enhance the existing emergency leave provisions under Ontario’s Employment Standards Act, 2000 to help ease the financial implications of the crisis for employers and employees.

If passed, Ontario’s new legislation will provide an unpaid job-protected leave to employees where:

• the employee is under medical investigation, supervision or treatment for COVID-19;
• the employee is acting in accordance with an order made under public health legislation;
• the employee is in isolation or quarantine;
• the employee is directed by their employer not to work; and,
• the employee needs to provide care to a person for a reason related to COVID-19 such as a school or daycare closure.[1]

These provisions would stretch back to January 25, 2020, which is the date the first presumptive case of COVID-19 was confirmed in Ontario.

There is currently no limit on the amount of time an employee can take off as an unpaid job-protected leave under the proposed legislation.

Where employees do take an unpaid job-protected leave, they will not be required to and should not be requested to provide a medical note to substantiate their absence.

As these changes have not yet been passed into law, employers in Ontario should continue to provide emergency leave to employees pursuant to the existing provisions of the Employment Standards Act, 2000 [2].

Temporary Lay-Off

Although not a new measure being proposed in response to the COVID-19 outbreak, employers and employees should be aware of the option for employees to be temporarily laid-off as a result of business closures and disruptions.

Under the Employment Standards Act, 2000, employers may temporarily lay-off employees for up to 13 weeks during a 20 week consecutive period and then recall the employee to work.

The purpose of a temporary lay-off is to retain employees and preserve employee seniority instead of terminating their employment outright, which would trigger an employer’s termination pay and severance pay obligations.

Employers should review the employment contracts they have in place and seek legal advice to ensure temporary lay-offs are permitted under their agreements. Without specific contractual language, a temporary lay-off may be considered a constructive dismissal which would trigger termination pay and severance obligations.

Family Status Accommodation

Employers and employees should also be aware of their obligations and rights under Ontario’s Human Rights Code during the COVID-19 outbreak.

The Code prohibits discrimination in employment on the basis of family status. This means that employers must take measures to accommodate employees who require changes to their schedules or working arrangements as a result of family care obligations, up to the point of undue hardship.

Employers should not assume that the extraordinary challenges posed by the COVID-19 outbreak automatically result in undue hardship. Instead, employers and employees should engage in discussions concerning accommodation so that employees may meet their family care obligations and continue to perform their job duties, where it is possible for them to do so.

Employers should consider requests for accommodation on a case-by-case basis and make decisions in conjunction with any internal policies concerning paid or unpaid leave for sickness or other circumstances.

Note that human rights issues can be complex and employers or employees with any concerns stemming from family status and family care obligations during the COVID-19 outbreak should obtain legal advice regarding their specific circumstances.

Federal Government of Canada Supports for Employees and Small Business Employers

In addition to the proposed legislative changes in Ontario, the federal government of Canada is making financial supports available to employees and eligible businesses affected by the COVID-19 outbreak.

Temporary Wage Subsidy

On March 18, 2020, the federal government announced it is proposing to provide eligible employers a temporary wage subsidy for a period of three months.

Eligible employers include corporations eligible for the small business deduction as well as non-profit organizations and charities.

The subsidy will be equal to 10% of employees’ wages paid during that period, up to a maximum subsidy of $1,375 per employee and $25,000 per employer. [3]

Employment Insurance (EI) Sickness Benefits

EI sickness benefits provide eligible employees with up to 15 weeks of income replacement benefits paid at a rate of 55% of the employee’s weekly earnings to a maximum of $573 per week.

Effective March 15, 2020, employees with sufficient insurable hours of employment who are quarantined because of the COVID-19 outbreak will be eligible to receive EI sickness benefits immediately, foregoing the usual one week waiting period in which benefits are not paid. [4]

Employees claiming EI sickness benefits due to quarantine will not have to provide a medical certificate to the federal government to substantiate their claim.

New Emergency Care Benefit

Effective April 2020, the federal government will also provide income support to individuals who do not qualify for EI sickness benefits.

This benefit will provide income support to new employees who have not accumulated sufficient insurable hours to qualify for EI sickness benefits or for employees who work relatively few hours.

The Emergency Care Benefit provides eligible individuals with payments of $900 bi-weekly for up to 15 weeks.

Individuals eligible for the benefit include workers who do not qualify for EI sickness benefits and are themselves quarantined or sick with COVID-19 or must take care of a family member who is sick with COVID-19.

Individuals who do not qualify for EI sickness benefits and who are parents with children who require care or supervision due to school closures will also be eligible to claim the benefit.

Work-Sharing Programs

Employers may also consider making use of work-sharing programs which help employers avoid layoffs by having employees work a reduced schedule and share available work over a specified period of time while claiming employment insurance benefits to offset the difference in income.

Employees must agree to the arrangement and employers must demonstrate a recent decrease in business activity of approximately 10% and meet other eligibility criteria to participate. [5]

Business Taxes

The federal government will also be extending the amount of time for employers to pay income tax.

The Canada Revenue Agency will allow all businesses to defer, until after August 31, 2020, the payment of any income tax amounts that become owing on or after March 18, 2020 and before September 2020.

As the COVID-19 outbreak continues to evolve rapidly, members of our team will remain available to assist you with any legal questions you may have.

Louis Sokolov is a partner with Sotos LLP, Canada’s largest franchise law firm. He is the team leader for the firm’s employment practice area. Louis has been recognized by Chambers Canada and Canadian Legal LEXPERT Directory. He can be reached directly at 416.572.7316 or lsokolov@sotosllp.com.

[1] Premier Ford Announces Job Protection for Workers during the COVID-19 Situation, News Release,

(March 16, 2020):

https://news.ontario.ca/opo/en/2020/03/premier-ford-announces-job-protection-for-workers during-the-covid-19-situation.html

[2] Employment Standards Act, 2000, s. 50.1.

^[3] Department of Finance Canada, Canada’s COVID-19 Economic Response Plan: Support for Canadians and Businesses:

https://www.canada.ca/en/department-finance/news/2020/03/canadas-covid-19-economic-response-plan-support-for-canadians-and-businesses.html#Support_for_Businesses

[4] Coronavirus disease (COVID-19) – Employment and Social Development Canada:

https://www.canada.ca/en/employment-social-development/corporate/notices/coronavirus.html

[5] Government of Canada, Work-Sharing:

https://www.canada.ca/en/employment-social-development/services/work-sharing.html

https://www.canada.ca/en/employment-social-development/services/work-sharing/temporary-measures-forestry-sector.html

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On April 3, 2019, the Ontario Government passed the Restoring Ontario’s Competitiveness Act, 2018 (Bill 66) resulting in significant amendments to the Ontario Employment Standards Act, 2000 (“ESA”)[1] as well as several other pieces of legislation.

1. No Director approval for excess hours

The former version of the ESA prohibited employers from requiring employees to work more than 48 hours in a week unless the Director of Employment Standards approved an agreement between an employee and their employer to increase the weekly limit.

With the amendments, employers can now bypass the Director’s approval and merely enter into a written agreement with the employee permitting excess hours.

2. No Director approval for overtime averaging

The ESA requires employers to pay employees overtime for hours in excess of 44 hours per week. Under the previous version of the ESA, employers (with employee approval) could average overtime hours over consecutive weeks in order to reduce this obligation. However, averaging agreements had to be approved by the Director of Employment Standards in order to be valid.

Under the amendments, similar to the approval of excess hours, the employer now only needs to obtain the employee’s written approval to enter into an overtime averaging agreement. The Director’s approval is no longer necessary.

3. No ESA poster at workplace

The former version of the ESA required employers to post the province’s ESA Poster in the employee’s workplace. The ESA Poster is prepared by the Ministry of Labour and sets out the employee’s rights under the ESA.

With the amendments, employers are no longer required to post the ESA Poster in the workplace; however, they must still provide a copy of the Poster to each employee.

Sotos LLP helps its clients remain current in this shifting landscape. For more information on the impact of these changes on your workplace, contact Louis Sokolov at lsokolov@sotosllp.com.

[1] See Schedule 9.

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Bill 47 has resulted in big changes to the Employment Standards Act, 2000 and Labour Relations Act, affecting both non-unionized and unionized workplaces in Ontario. In addition, it has revised apprenticeship rules under the Ontario College of Trades and Apprenticeship Act.

The most important changes to the Employment Standards Act include:

• Freezing the Minimum Wage – The minimum wage will stay at $14 / hour, rather than going up to $15 / hour on January 1, 2019. Further increases will start in October, 2020 and be tied to the rate of inflation;
• New Rules for Leave Days – Bill 47 has replaced the right to receive 10 Personal Emergency Leave days, of which two must be paid, with eight unpaid annual leave days consisting of three days for personal illness, two bereavement days and three “family responsibility” days;
• Rolling Back Equal Pay for Equal Work – Bill 47 has reversed the prohibition on employers differentiating pay on the basis of employment status (part-time, casual, and temporary). It does not change the law requiring equal pay on the basis of sex; and
• Changes to Scheduling Rights – Bill 148 put in place a number of provisions extending rights to shift workers. These included the right to request changes in a work schedule, the right to a minimum of three hours of pay when shifts are cancelled with less than 48 hours’ notice, mandatory pay for ‘on call’ employees, and the right to refuse a shift when less than 96 hours’ notice was given. Bill 47 has repealed these provisions.

Previous changes of the Labour Relations Act making it easier for employees to unionize have also been reversed, including:

• Reduced Card-Based Certification – The previous government had instituted card-based certification for employees in home care, building services, and temporary help agencies giving them the right to vote to unionize in a secret ballot. Bill 47 has taken this away;
• No Requirement to Disclose Employee Lists – Bill 148 had given unions involved in organizing campaigns the right to obtain a list of contact information for employees in a workplace if the union could prove it had the support of at least 20% of employees in a proposed bargaining unit. Bill 47 has removed this right;
• Right to Change Bargaining Units Revoked – Section 15.1 of the Labour Relations Act gave the Labour Relations Board the power to review and make changes to the makeup of bargaining units in certain circumstances. Bill 47 has struck out this provision.

However, a number of the changes to employee rights in Bill 148 have been preserved.  These include the extension of the right to unpaid leaves including:

• pregnancy/parental leave (to a total of 18 months);
• family medical leave (to 28 weeks);
• Creation of critical illness leave, includes ability to take leave to care for a critically ill adult; and
• Creation of child death leave.

Both Bill 148 and Bill 47 made comprehensive and wide-ranging changes to workplace law in Ontario.

For more information on the impact on your workplace contact Louis Sokolov at lsokolov@sotosllp.com.

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The report consists of recommendations, which the government will consider, and then decide what changes it will make to workplace legislation.

The report’s recommendations, if implemented, will have significant impact on the franchising industry, most significantly by changing the rules regarding unionization. The report did not recommend that franchisors and franchisees be deemed to be “joint employers” for purposes of Employment Standards Act, 2000 (“ESA”) compliance or collective bargaining and union certification.  It did recommend that the law regarding union certification be amended to permit multiple franchises of the same franchisor, in the same geographic region, to be part of the same bargaining unit. The report further suggested that strong mechanisms be put in place to ensure that employers do not unfairly interfere with employees’ rights to unionize. The intention of these measures appear to be to make it easier and more viable for employees in the franchise industry to unionize.

The report also contains numerous recommendations that, if implemented, will substantially affect employers and employees in all industries in Ontario.  These include:

• Creation of a “Workplace Rights Act”, to aid creating a culture of compliance among employers. This would combine the ESA, the Labour Relations Act, 1995,and Occupational Health and Safety Act and be more expressly focused on workplace rights.
• Increased, and more active, enforcement of employment standards rights and obligations. The report specifically singled out the issue of “misclassification” of employees as “independent contractors” for priority enforcement and suggested that the term “dependent contractor” be added to the definition of “employee”.
• Increased penalties for non-compliance with the ESA.
• Providing part-time, casual, temporary, contract and seasonal employees with the same rights as comparable full- time employees.
• Extension of personal emergency leave and bereavement leave entitlement to all employees – not only to those employed in workplaces with 50 or more employees.
• Increasing minimum vacation entitlement to 3 weeks per year after 5 years of employment.

A summary of the report can be viewed here, and the full report can be viewed here.

We are studying the report and the recommendations and will provide further updates as it becomes clear which recommendations that the government is likely to adopt.

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The Act which was first introduced as Bill 132 on October 27, 2015, amends six statutes with respect to sexual violence, sexual harassment, domestic violence and related matters. Notably for employers, the Act amends the Occupational Health and Safety Act, R.S.O. 1990, c. O.1 (the “OHSA”) and creates new obligations for employers concerning workplace harassment. The amendments to the OHSA will come into force on September 8, 2016.

Workplace Harassment Includes Sexual Harassment

The Act expands the definition of “workplace harassment” in the OHSA to include “workplace sexual harassment” which is defined as:

• engaging in a course of vexatious comment or conduct against a worker in a workplace because of sex, sexual orientation, gender identity or gender expression, where the course of comment or conduct is known or ought reasonably to be known to be unwelcome, or

• making a sexual solicitation or advance where the person making the solicitation or advance is in a position to confer, grant or deny a benefit or advancement to the worker and the person knows or ought reasonably to know that the solicitation or advance is unwelcome.

New Employer Obligations

The amendments to the OHSA require employers to develop and maintain a written program to implement their workplace harassment policy. The written program is to be created in consultation with a joint health and safety committee or health and safety representative, if applicable, and must be reviewed at least annually. The written program must outline, amongst other things:

• measures and procedures for workers to report incidents of workplace harassment to a person other than the employer or supervisor, if the employer or supervisor is the alleged harasser;
• how incidents or complaints of workplace harassment will be investigated and dealt with;
• how information obtained about an incident or complaint of workplace harassment, including identifying information about any individuals involved, will not be disclosed unless the disclosure is necessary for the purposes of investigating or taking corrective action with respect to the incident or complaint, or is otherwise required by law; and
• how a worker who has allegedly experienced workplace harassment and the alleged harasser, if he or she is a worker of the employer, will be informed of the results of the investigation and of any corrective action that has been taken or that will be taken as a result of the investigation.

The Act also requires that employers ensure that their harassment policy and written program is properly implemented and that workers receive proper information and instruction on the policy and program. Specifically, an employer must make sure that an appropriate investigation is conducted into incidents and complaints of workplace harassment. Employers must ensure that the worker and alleged harasser, if he or she is a worker of the employer, are informed in writing of the results of the investigation and any corrective action taken.

Third-Party Investigators

One of the most significant amendments to the OHSA is that OHSA inspectors now have the power to order that an employer hire an impartial third party, at the employer’s expense, to conduct a workplace harassment investigation and produce a report. The amendment does not, however, specify the circumstances in which the inspector will order an employer to retain an impartial third party, or how impartiality will be determined.

Privacy Concerns

In order to ensure privacy and confidentiality, the results of an investigation conducted into incidents and complaints of workplace harassment will not be disclosed to the committee, a health and safety representative or employees, unlike other investigations conducted under the OHSA.

Takeaway for Employers

The amendments to the OHSA create significant new obligations for employers, but also make clear that a reasonable action taken by an employer or supervisor relating to the management and direction of workers or the workplace does not constitute workplace harassment.

Employers should begin the process of reviewing and updating their workplace harassment policies and programs to ensure they comply with the OHSA amendments. Employers should also ensure that managers, human resources personnel and workers receive appropriate training and understand the meaning and impact of the amendments well before they come into force.

For more information on this legislative development contact Louis Sokolov at lsokolov@sotosllp.com.

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