Working for Workers Act 2022 brings changes to Ontario workplaces
By John Hyde
The Working for Workers Act, 2022, which recognizes the employment rights of a growing number of workers who accept work under digital platforms, has passed. The act also introduces significant changes to current employment legislation, including requirements that employers have policies concerning electronic monitoring and the “right to disconnect.”
Disconnecting from work policy
Companies with more than 25 employees are now required to have a written policy regarding the right to disconnect from work. “Disconnecting from work” means not engaging in any work-related communications, including emails, telephone calls, video calls, or sending/reviewing other messages, so as to be free from the performance of work.
As the legislation does not provide any direction regarding the contents of this required policy, employers should consult with their employment law counsel to formulate an appropriate policy, which takes into account the specific circumstances and expectations of their workplace. Employers are required to provide the policy to new employees and existing employees by no later than June, 2022.
Electronic monitoring policy
Companies with over 25 employees are also required to have a written policy concerning electronic monitoring, which must also be provided to new employees and existing employees by no later than October, 2022. The policy must confirm whether the Company monitors its employees electronically and if so, it must describe how and in what circumstances this is done, as well as the purposes for which information obtained through electronic monitoring may be used. It is strongly recommended to have such policies drafted by employment law counsel, in order to ensure compliance.
Exclusion of business consultants and information technology consultants
Employers have been relieved of some obligations under the ESA concerning consultants who meet very specific criteria and definitions set out in the legislation. One requirement is that such consultants provide their services through a corporation or sole proprietorship. Another requirement is that there must be an agreement for a prescribed amount of minimum compensation, which is currently $60 per hour, excluding bonuses, commissions, expenses, and travelling allowances and benefits.
Employers who work with such consultants (or intend to) should ensure that their relationship is consistent with the legislative requirements necessary for the ESA exclusions to apply, in order to avoid inadvertently triggering ESA entitlements for these workers.
New rights for digital platform workers
The Digital Platform Worker’s Rights Act, 2022 targets a growing number of Canadians who participate in the sharing economy through digital platforms, and who have been traditionally excluded from employment standards protections. This new legislation establishes rights for digital platform workers who provide rideshare, delivery, and courier services. Those rights include:
- The right to a recurring pay period and pay day;
- The right to minimum wage;
- The right to notice of removal from an operator’s digital platform;
- The right to resolve digital platform work-related disputes in Ontario; and
- The right to be free from reprisal.
These new rights will impose significant obligations on operators of digital platforms, such as Uber. In many respects, these workers now have rights in Ontario akin to those of traditional employees.
Amendments to the Occupational Health and Safety Act (OHSA)
Employers are now required to provide naloxone kits to employees and comply with certain related requirements if the employer becomes aware, or ought to be reasonably aware, that there may be a risk of a worker having an opioid overdose at a work. There are significant fines for contraventions of this requirement.
As the legislation does not provide any direction on when employers “ought to be reasonably aware”, employers should err on the side of caution, and consult with counsel where they suspect there might be such a risk. In assessing that risk, employers must be mindful of their obligations under human rights legislation, juxtaposed against an employee’s right to confidentiality. It is a delicate issue, requiring thoughtful consideration and planning.
Various other sections of the OHSA have also been amended, including those pertaining to sentencing provisions and limitation periods.
Overall, the new changes impose significant additional obligations upon employers in Ontario. Employers would be wise to conduct a thorough review of their health and safety policies as soon as possible.
John Hyde is the managing partner at Hyde HR Law in Toronto. He advises management on all aspects of employment and labour law, including representation before administrative tribunals, collective agreement negotiation, arbitrations, wrongful dismissal defence and human rights.
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