The Ontario government amended the province’s employment standards and occupational health and safety legislation once again on December 12, 2024, by passing Bill 229, the Working for Workers Six Act, 2024 (the “Act”).
Most notably, the Act amends the Employment Standards Act, 2000 (the “ESA”) to introduce two new job-protected leaves, and it creates mandatory minimum penalties for corporate employers convicted of multiple offences under the Occupational Health and Safety Act (the “OHSA”) which resulted in serious injury or death to a worker, in addition to other changes.
New Job-Protected Leaves Under the ESA
As noted above, the Act will amend the ESA to create two new job-protected leave of absences for Ontario employees— the placement of a child leave (related to adoption and surrogacy) and the long-term illness leave.
Placement of a Child Leave
The placement of a child leave will be enacted via the addition of a new section 47.1 to the ESA, and only employees who have completed at least 13 weeks of employment will be eligible. Such employees will be entitled to take up to 16 weeks of unpaid leave because of the placement or arrival of a child into their custody, care and control for the first time where: (i) it is for the purposes of adoption; or (ii) the person who gave birth to the child is a surrogate.
Notably, the amount of this leave that may be taken by one or more employees in respect of the same child will be capped at 16 weeks, such that a parent can only take the full 16 weeks if their co-parent does not take any placement of a child leave. Furthermore, if multiple children come into the custody, care and control of an employee for the first time on the same day, then they will still be only entitled to up to 16 weeks in total (not 16 weeks per child).
An entitled employee will be permitted to begin the placement of a child leave no earlier than six weeks prior to the expected date of the placement, or the date that the placement occurs (whichever is earlier). Additionally, if an employee begins the leave after the date of placement, then their leave must end no later than 17 weeks after the date of the placement (such that they must begin the leave within one week of the placement in order to take the full 16 weeks of leave).
Employees will also be required to provide their employer with at least 2 weeks of notice of the dates they intend to begin and end a placement of a child leave. However, if an employee stops working because a placement occurs earlier than expected, then their leave begins on the day they stop working and they must notify their employer in writing that they are taking this leave within two weeks. In addition, employees will be prohibited from resigning from their employment during or upon the conclusion of a placement of a child leave, unless they provide the employer with at least 4 weeks of advance written notice.
In turn, employers will be permitted to require employees who take a placement of a child leave to provide “evidence reasonable in the circumstances of the employee’s entitlement to the leave”. That said, the Act does not provide further guidance on what evidence would be considered reasonable in the circumstances.
The amendments enacting this new leave will come into effect on a date to be proclaimed by the Lieutenant Governor, such that it is currently unclear when this new leave will become available.
Long-Term Illness Leave
The new long-term illness leave will be enacted via the addition of a new section 49.8 to the ESA, and only employees who have completed at least 13 weeks of employment will be eligible. Such employees will be entitled to up to 27 weeks of leave in a 52-week period if: (i) the employee will not be performing their duties due to a serious medical condition; and (ii) a physician, registered nurse, or psychologist issues a certificate stating that the employee has a serious medical condition and setting out the period during which they will not be performing their duties because of it.
Notably, employees will be limited to taking up to 27 weeks of leave in a 52-week period even if they have more than one serious medical condition, and they will not be permitted to take more leave than set out in the certificate issued by their qualified health practitioner.
Employees will also be required to advise their employer in writing that they are taking a long-term illness leave in advance, unless they must begin the leave before advising their employer, in which case they must advise their employer as soon as possible after beginning it.
If requested by the employer, an employee taking a long-term illness leave will be required to provide the employer with a copy of the certificate issued by their qualified health practitioner as soon as possible.
The amendments enacting the long-term illness leave will come into effect on June 19, 2025, such that it will become available on that date.
Mandatory Minimums for Corporate Employers with Repeated Offences Under the OHSA
The Act also enacted a new mandatory minimum fine for corporate employers which have been convicted of two or more offences under the OHSA which resulted in the death or serious injury of a worker in a 2-year period. In particular, the minimum fine that must be imposed on such employers is now $500,000. Notably, there was previously no mandatory minimum fine for employers convicted of offences under the OHSA, there was only a maximum penalty of $2,000,000 (which remains unchanged).
The amendment enacting this new mandatory minimum fine came into force on December 19, 2024, when the Act received royal assent, such that it is already in effect.
The Bottom Line
Employers should ensure that they familiarize themselves with the requirements for the two new job-protected leaves before they come into effect, to ensure compliance and avoid penalties.
Moreover, it is now more important than ever for employers to ensure they are meeting their obligations under the OHSA, especially in they have been convicted of an offence in the last 2 years which resulted in the serious injury or death of a worker. This is because such employers which are subsequently convicted of subsequent offences resulting in death or serious injury to a worker during a 2-year period will result in fines of no less than $500,000.
If you have any questions regarding the amendments discussed above, or if you require any assistance with ensuring that your business is meetings its statutory obligations, please do not hesitate to contact us for expert legal advice and guidance.
