On May 6, 2024, the Ontario government proposed new amendments to the province’s employment standards and occupational health and safety legislation (among other changes) by tabling the Working for Workers Five Act, 2024 (“Bill 190”).
If passed, Bill 190 would implement several changes relevant to Ontario employers by amending the Employment Standards Act, 2000 (the “ESA”), the Occupational Health and Safety Act (the “OHSA”), and related legislation. Most notably, Bill 190 would: (i) increase the fines/penalties for employers who breach the ESA; (ii) prohibit employers from requiring doctors’ notes to validate sick leaves under the ESA; (iii) place new obligations on employers in relation to hiring processes; and (iv) revise the definition of “workplace harassment” and “sexual harassment” under the OHSA.
The most notable proposed amendments under Bill 190 for Ontario employers are set out.
Increased Fines/Penalties for Breaching the ESA
If passed, Bill 190 would increase the fines/penalties that may be imposed against employers who breach the minimum requirements of the ESA.
First, the maximum fine for individuals convicted of breaching the ESA would be increased from $50,000 to $100,000. On the other hand, the maximum fines which may currently be imposed against a corporation which has violated the ESA of $100,000 for a first offence, $250,000 for a second offence, and $500,000 for further offences would remain the same.
Second, Bill 190 would amend regulations under the ESA to increase regulatory penalties which may be imposed against employers which repeatedly violate the ESA. In particular, Bill 190 would amend Penalties and Reciprocal Enforcement, O. Reg. 289/01 by increasing the maximum regulatory penalty that can be imposed against an individual for a third or subsequent contravention of the ESA in a three-year period from $1,000 up to $5,000.
Thus, if Bill 190 is passed, it will be more important than ever for employers to ensure that they comply with the ESA because failure to do so would result in even greater potential fines/penalties.
Prohibiting Employers from Requiring Doctors’ Notes
Another notable change Bill 190 would make if passed that employers would be prohibited from requiring employees to provide doctors’ notes to validate their need for a sick leave under the ESA.
Nonetheless, employers would still be permitted to require employees to provide “evidence that is reasonable in the circumstances” that they require a sick leave under the ESA, which could include a signed a declaration/attestation. The Ontario government has stated that the Ministry of Labour would provide further guidance for employers as to the types of evidence they may require.
Crucially, this change would only apply to the up to three days per year of sick leave which employees are entitled to under the ESA, and employers would still be permitted to require doctors’ notes in cases of longer-term sick leaves.
New Employer Obligations for Hiring Processes
If passed, Bill 190 would also create a couple new obligations for employers in relation to hiring processes.
First, employers would be required to disclose in publicly advertised job postings whether the position being advertised is vacant. Second, employers would be required to respond to applicants they have interviewed for jobs. However, the Ontario government has yet to provide further details regarding this new obligation to respond to job applicants and whether there are any exceptions to it, such that the scope of the obligation remains unclear.
Revised Definition of Harassment Under the OHSA
The Act would also amend the OHSA by revising the definition of harassment, in an effort to adapt this definition to better reflect the realities of increasingly digital workplaces since the rise of work-from-home arrangements during the COVID-19 pandemic.
In particular, the definition of “workplace harassment” would be modernized to include protection against virtual harassment and virtual sexual harassment. This would make it clear that employers are obligated to appropriately prevent, investigate, and address workplace harassment even where it takes place virtually, rather than in the physical workplace. This would not represent a substantive change in law, but it would provide additional clarity for employers that their obligations in relation to workplace harassment extend beyond the physical workplace.
The Bottom Line
As its name implies, the Working for Workers Five Act, 2024 is the fifth round of proposed amendments to workplace-related legislation in Ontario in the last few years. In fact, the Working for Workers Act Four, 2024 just received royal assent on March 21, 2024, and yet the Ontario government has already proposed further changes to employment-related legislation. Thus, employers should be proactive in monitoring the status of the Act and remain vigilant for any other potential changes to their statutory obligations, to ensure they are prepared when further changes do inevitability come into effect.
We will continue monitoring the legislative progress of Bill 190 and provide timely updates regarding any new developments. If you have any questions regarding the proposed 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.
