On December 2, 2021, the Working for Workers Act, 2021 (the “Act”) received Royal Assent and came into force as law. As discussed in our previous communique, the Act will amend a number of statutes, including the Employment Standards Act, 2000, the Occupational Health and Safety Act, the Workplace Safety and Insurance Act, 1997, and Employment Protection for Foreign Nationals Act, 2009. These amendments introduce new requirements for employers, including prohibiting non-competition agreements with employees, prohibiting the use of recruiters that charge fees and, for employers with 25 or more employees, requiring the development of “disconnecting from work” policies. Additionally, the Act contains changes to licensing requirements for recruiters.
Now that the Act has received Royal Assent, employers should consider reviewing their policies, practices and employment contracts to ensure compliance ahead of upcoming deadlines imposed by the Act.
Amendments to the Employment Standards Act, 2000 (“ESA”)
Disconnecting from work
The Act requires employers with 25 or more employees to develop “disconnecting from work” policies. Such policies may include reasonable expectations about response time for emails, and encourage employees to turn on out-of-office notifications when they are not working. Currently, there is little guidance as to what the policy must say, so employers should have flexibility to develop policies that further life work balance for their employees without sacrificing productivity and flexibility.
The Act defines the term “disconnecting from work” as “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.”
The Act requires that a policy be put in place for “all employees.” Once an employer prepares or amends a “disconnecting from work” policy, employers will have 30 days to share copies of this policy with employees. Employers must also provide new employees with this policy within 30 days of being hired.
Employers will have six months from the date of Royal Assent (December 2, 2021) to develop their written policies. Following this initial year, employers will have to prepare their policies by no later than March 1 of each year.
Prohibition on Non-Competition Agreements
The Act also amends the ESA to prohibit employers from including non-compete clauses in any agreement they form with an employee effective October 25, 2021. If this provision is violated, the non-compete agreement will be void. There are two exceptions to this prohibition:
- Sale of a Business
The prohibition will not apply if a purchaser and seller enter into a non-compete agreement, and the seller becomes an employee of the purchaser immediately after the sale.
- Executive Employees
The prohibition also exempts employees in an executive role. The Act defines an “executive” as an employee who holds the office of a chief executive position, including that of president, chief executive officer, chief financial officer, chief human resources officer, chief administrative officer, or any other chief executive position.
Licensing Recruiters and Temporary Help Agencies
The Act introduces a licensing regime that requires temporary help agencies and recruiters to apply for a license.
Recruiters or temporary help agencies may be refused a license, or have their license revoked or suspended, for reasons including using recruiters that charge fees to foreign nationals, providing false or misleading information in an application, and situations in which the Director of Employment Standards has reasonable grounds to believe that the applicant will not carry on business with honesty, integrity and in accordance with the law. Reviews of refusal, revocation, and suspension of licences will be heard by the Ontario Labour Relations Board.
Amendments to the Occupational Health and Safety Act
The Act requires that a person in the course of delivering or picking up a package from a business must be allowed washroom access if requested.
Businesses can be exempt from this requirement if sharing the washroom is unreasonable or impractical because of health and safety reasons or context, or if the delivery person would have to enter a dwelling to use the washroom.
Amendments to the Employment Protection for Foreign Nationals Act, 2009
The Act prohibits recruiters and employers from knowingly using the services of recruiters that directly or indirectly charge a foreign national for any service, good or benefit provided to the foreign national.
An employer or recruiter who charges a fee or otherwise violates this prohibition on charging fees will be jointly and severally liable to repay the fees charged to the foreign national.
Amendments to the Workplace Safety and Insurance Act, 1997 (“WSIA”)
The Act will allow a significant portion of the Workplace Safety and Insurance Board’s current surplus to be distributed to Schedule 1 employers as defined in the WSIA, provided the amount of the insurance fund meets a sufficiency ratio.
Amendments to the Fair Access to Regulated Professions and Compulsory Trades Act, 2006
The Act states that “Canadian experience” requirements will not be a qualification for registration in a regulated health profession. However, regulated professions may apply for an exemption from the prohibition by the Minister for the purposes of public health and safety in accordance with the regulations.
Amendments to the Ministry of Agriculture, Food and Rural Affairs Act
The Act empowers the Minister to collect information, including personal information directly or indirectly, related to agriculture, food or rural affairs for the purposes of emergency response and public health. The Act provides that the Minister shall not collect, use or disclose personal information if other information will serve the purpose.
Miller Thomson’s Labour and Employment team will continue to monitor these developments and provide updates as they occur.