As of April 11, 2022, Bill 88, Working for Workers Act, 2022, received Royal Assent. As a result, the Digital Platform Workers’ Rights Act, 2022, has been enacted. Amendments have also been made to the Employment Standards Act, 2000 (the “ESA”), the Occupational Health and Safety Act (the “OHSA”) and the Fair Access to Regulated Professions and Compulsory Trades Act, 2006. 

Notably, now Ontario is the first province to require employers to have an electronic monitoring policy.

Amendments to the ESA

Bill 88 has amended the ESA to require the following:

• A written policy regarding electronic monitoring of employees must be implemented by March 1 of each year, if as of January 1 of the same year, an employer has 25 or more employees.
  • Given the new implementation of this policy requirement, there is a transitional period of 6 months, such that Ontario employers with 25 or more employees on January 1, 2022 have until October 11, 2022 to implement a written electronic monitoring policy.
  • The electronic monitoring written policy must include:
    • Whether employees are electronically monitored;
    • If employees are electronically monitored: how and in what circumstances is the employer monitoring employees; and the purposes for which the information obtained through electronic monitoring may be used by the employer;
    • The date the policy was prepared and the date any changes were made to the policy; and
    • Any other information as may be prescribed by the legislation.

Currently, no further requirements have been prescribed.

• As of January 1, 2023, provided certain criteria are met, the ESA will not apply to business consultants and information technology consultants.
  • Business Consultant is defined as an individual who provides advice or services to a business or organization in respect of its performance, including advice or services in respect of the operations, profitability, management, structure, processes, finances, accounting, procurements, human resources, environmental impacts, marketing, risk management, compliance or strategy of the business or organization.
  • Information Technology Consultant is defined as an individual who provides advice or services to a business or organization in respect of its information technology systems, including advice about or services in respect of planning, designing, analyzing, documenting, configuring, developing, testing and installing the business or organization’s information technology systems.
• As of April 11, 2022, the service eligibility requirement for Reservist Leave under the ESA is 3 months (from 6 months).

Amendments to the OHSA

Bill 88 has also increased penalties under the OHSA, such that as of July 1, 2022, the following amendments will come into force:

• The fines for a contravention of the OHSA by a person are increased to a maximum of $500,000 (from $100,000).
• A new penalty is created for directors or officers of a corporation who do not take reasonable care to ensure that the corporation complies with the OHSA and related orders. On conviction, directors and officers are liable to a fine of not more than $1,500,000 or to imprisonment for a term of not more than 12 months, or both.
• Aggravating factors must now be considered when assessing the penalties under the OHSA. An employer’s motives can now be assessed, such as the possible motivation to increase revenue or decrease costs which result in an OHSA
• The limitation period for instituting prosecutions under the OHSA is increased to 2 years (from 1) from the later of the date of the occurrence and the day the inspector becomes aware of the alleged offence.

Employers are also required to provide a naloxone kit in the workplace, where employers are made aware or ought to reasonably be aware that there may be a risk of a worker having an opioid overdose in the workplace. A worker must be trained on recognizing an opioid overdose and how to administer naloxone. This requirement will come into force upon proclamation.

Digital Platform Workers’ Rights Act, 2022

Bill 88 has also enacted a new statute, the Digital Platform Workers’ Rights Act, 2022, which will come into force upon proclamation. This statute applies to any person, including independent contractors, engaged as a digital worker and is intended to encompass a more broad application than the ESA. The statute establishes a broad parameter of rights for digital workers, such as the entitlement to minimum wage, right to amounts earned (including tips and gratuities), rights to a range of information regarding digital work completed, right to a notice of removal, right to resolve disputes in Ontario, right to be free from reprisal, and other miscellaneous requirements such as record keeping.

Changes to the Fair Access to Regulated Professions and Compulsory Trades Act

Lastly, Bill 88 amends the Fair Access to Regulated Professions and Compulsory Trades Act, 2006 to establish prescribed timelines that regulated professions must respond to applications for registration from domestic labour mobility applicants:

• A regulated profession must acknowledge an application for registration within 10 days of receipt; and
• A regulated profession must make and provide the registration decision within 30 days of receiving the application.

The amendments also create an internal review or appeal process. These amendments will come into force upon proclamation.

For any questions regarding Bill 88 or how it will impact your business, please contact a member of our Labour & Employment Group.