Possible Changes to Employment Law on the Horizon in Ontario

On October 25, 2021, Ontario’s government introduced the Working for Workers Act, 2021 (the Act), which, if passed, would amend certain aspects of the Employment Standards Act, 2020 and other laws impacting employment practices in the province.

“Disconnecting From Work”

The Act requires employers with 25 or more employees to have a written policy regarding employees’ “disconnecting from work.” The Act defines “disconnecting from work” to mean “not engaging in work-related communications, including emails, telephone calls, video calls or the sending or reviewing of other messages, so as to be free from the performance of work.” In a news release related to the Act, the Ontario government stated that such policies might include, “for example, expectations about response time for emails and encouraging employees to turn on out-of-office notifications when they aren’t working.” The government further stated that the measure is intended to “prioritize[e] workers’ mental health and family time.”

Prohibiting Noncompetes

The Act prohibits employers from entering into noncompete agreements or contracts that include such agreements. It defines a “noncompete agreement” 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.” The Act provides that any noncompete agreements entered into in violation of this provision are void.

The Act provides an exception, however, for “the sale of a business or part of a business,” whereby the seller becomes an employee of the buyer immediately after the sale. Notably, if the Act is passed, Ontario will be the first jurisdiction in Canada to ban noncompetes in employment.

Removing Licensure Barriers for Internationally Trained Workers

The Act amends the Fair Access to Regulated Professions and Compulsory Trade Act, 2006 by removing “Canadian experience” requirements for internationally trained individuals to be licensed in “regulated professions” (i.e., professions identified under preexisting law, such as engineers, teachers, veterinarians, lawyers, and accountants) However, the Act allows for regulated professions to apply for an exemption for “public health and safety” reasons. Further, the Act stipulates that “regulated professions” must still comply with requirements regarding English and French language proficiency testing.

Licensing Recruiters and Temporary Help Agencies

The Act requires a person or a business that operates as a ‘temporary-help agency’ or as a ‘recruiter’ to be licensed; such licenses are issued by the Director of Employment Standards and are valid for a term of one year (subject to renewal). Further, the Act prohibits employers from “knowingly” engaging the services of a recruiter who is not licensed.

Protecting Delivery Workers

The Act amends the Occupational Health and Safety Act to require the “owner” of any workplace to provide delivery workers with access to the workplace’s washroom. The requirement applies to workers who are on-site to either pick up or deliver an item. The Act does include exemptions for health and safety, security, and practical reasons, however.

Distributing Workplace Safety and Insurance Board’s Insurance Fund Surpluses

The Act amends the Workplace Safety and Insurance Act, 1997 to allow the distribution of surpluses in the Workplace Safety and Insurance Board’s (WSIB) Insurance Fund to businesses in the province. In order to trigger this provision, the surpluses would need to meet certain thresholds set forth in the Act. In a news release related to the Act, the Ontario government stated that allowing such distributions is meant to help businesses “cope with the impacts of COVID-19.”

Allowing Collection of Information Related to Agri-Food Workforce

The Act amends the Ministry of Agriculture, Food and Rural Affairs Act to allow the Ministry of Agriculture, Food and Rural Affairs to collect information, “including personal information,” regarding the agri-food workforce. The Act authorizes the Ministry to collect and use such information to respond to “urgent public health or public safety concerns related to agriculture, food or rural affairs” and “plan for or respond to emergencies related to agriculture, food or rural affairs.” In another news release related to the Act, the Ontario government indicated that the purpose of this proposed change is to “ensure the government can enhance the coordination of services such as vaccination and testing.”

If passed, the Act could significantly alter the obligations of employers operating in Ontario. We will continue to monitor the proposed legislation and report back here.