On Nov. 30, 2021, Bill 27: Working for Workers Act, 2021, was passed. Once this bill receives royal assent, it will become law in Ontario. We anticipate that this will happen before the end of the year.
The bill introduces a number of significant changes that both employers and employees should be aware of. The following article provides an overview of the proposed changes to the legislation.
1. Mandated “disconnecting from work” policy
With advancements in communication technology, the market has shifted to create the expectation that employees are reachable at any hour of the day. The intention behind this amendment is to provide some protection for employee mental health and family time. This update to the legislation will require employers that have more than 25 employees to implement a written policy with respect to the employee’s right to “disconnect from work.” “Disconnecting from work” is defined in the Act as, “not engaging in work-related communications, including emails, telephones, video calls or the sending or reviewing of other messages, so as to be free from the performance of work.”
The legislation specifically notes that if an organization has more than 25 employees on Jan. 1 of any given year, the policy needs to be written and posted by March 1 of that same year. As an introductory measure, employers will have six months from the date the bill is passed to prepare and post their policies.
The update to the legislation does not regulate the specific contents of such a policy. However, the government has provided some examples of such a policy, which include measures such as indicating an expected response time to e-mails or encouraging employees to turn on out-of-office notifications when they are outside of their working hours. While there are no specific requirements for this policy yet, the introduction of this requirement could represent the first step towards further regulation and protection of employee private time.
2. Prohibition of non-competition agreements (with exceptions)
Another major feature of this update to the legislation is a prohibition on non-competition agreements (“non-compete agreements”). Non-compete agreements are clauses that employers implement in employee agreements with the purpose of preventing an employee from taking up employment with a competitor for a fixed amount of time following the end of their employment. The intention of this legislation is to increase the competitiveness of employees in Ontario. If the non-compete clauses can be prohibited in this jurisdiction, Ontario could attract global talent. For more information about non-competition agreements, please review our blog post here.
The legislation defines non-compete agreements as an “Agreement, or any part of an agreement, between an employer and an employee that prohibits the employee from engaging in any business, work, occupation, profession, project or other activity that is in competition with the employer’s business after the employment relationship between the employee and the employer ends.”
There are two narrow exemptions to this prohibition:
a. Executives are defined as, “any person who holds the office of chief of executive officer, president, chief administrative officer, chief operating officer, chief financial officer, chief information officer, chief legal officer, chief human resources officer, or chief corporate development officer or holds any other chief executive position.”
2) The sale of a business:
a. Sellers of part or all of a business, who become buyers immediately as a result of the sale.
This legislation is a significant move forward for employees and serves the government’s goals of obtaining full employment by removing a barrier that could prevent employees from re-entering the workforce. Notably this legislation is not retroactive and will only affect employment agreements entered into after the bill is passed into law.
3. Licensing requirement for temporary help agencies and recruiters
The new legislation will require both temporary help agencies and recruiters to obtain licences in order to provide services in Ontario. These organizations will have to obtain a licence to operate from the Director of Employment Standards by making an application. The legislation also requires clients of both recruiters and temporary help agencies to ensure that the organization they are working with has the proper licences in place.
4. The removal of barriers for internationally trained professionals
There have been labour shortages throughout the province. In direct response to this issue, this legislation will introduce changes to the Fair Access to Regulated Professions and Compulsory Trades Act, 2006. The intention of these changes is to make it easier for foreign trained workers tp become qualified in Ontario by removing a requirement for “Canadian experience.” The professions affected by this legislation include:
- Land surveyors;
- Early childhood educators;
- Engineering technicians and technologists;
- Social workers and social service workers;
- Professional foresters;
- Human resources professionals; and
5. The provision of washrooms for delivery workers
The new legislation will amend the Occupation Health and Safety Act, to require the owner of a workplace to provide a washroom for any worker who is delivering or collecting items from a workplace. As our economy has grown increasingly dependent on delivery drivers and this update is intended to offer further protection of their rights.
There are certain exemptions for business owners for whom it would be impractical to provide access to a washroom. These exemptions will depend on the specific circumstances of each business owner.
This article was written by Walter Yoo and was originally published by The Lawyer’s Daily on December 7, 2021. Walter Yoo is a Toronto Employment Lawyer and associate with Monkhouse Law, which specializes in employment law, human rights law and disability insurance law.