More Employment Law Changes Proposed in Ontario’s Fifth Working for Workers Bill

On May 6, 2024, the Government of Ontario introduced Bill 190, the Working for Workers Five Act, 2024.[1] The legislation carried second reading on May 16, 2024, and was referred to the Standing Committee on Finance and Economic Affairs (the “Standing Committee”).

Like its predecessors,[2] this fifth iteration of Working for Workers legislation proposes a number of significant amendments to the Employment Standards Act, 2000 and the Occupational Health and Safety Act.

Proposed Amendments to the Employment Standards Act, 2000 (“ESA”)

• New Job Posting and Recruitment Requirements: A new obligation would be introduced requiring employers who publicly advertise a job posting to disclose whether the posting is for an existing vacancy or not. Employers will also have a duty to provide applicants with certain information within a prescribed time period, and to retain copies of such information for three years. Certain exceptions would be prescribed and regulation-making authority would be introduced for defining what constitutes an “interview” for the purposes of this section. These requirements would build upon the pay transparency amendments in Bill 149, the Working for Workers Four Act, 2024, which will, once proclaimed into force, require employers who post publicly advertised job postings to disclose either the expected compensation or a range of expected compensation for the role.
• New Restrictions on Medical Notes: A new prohibition would be introduced against requiring employees to provide a medical certificate for short-term sick leave under the ESA. Instead, employers will be permitted to require other “evidence reasonable in the circumstances” to establish that the employee is entitled to the leave. This restriction on medical notes applies only to the three-day sick leave entitlement under the ESA, and does not prohibit employers from requesting medical notes for illness-related absences longer than three days.
• Maximum Fines: Maximum fines for individuals convicted of an offence under the ESA would be increased from $50,000 to $100,000. This would make the fines the highest of their kind in Canada.

Proposed Amendments to the Occupational Health and Safety Act (“OHSA”)

• Remote Work: OHSA would be amended to specify that it applies to remote work that is performed at a private residence. The definition of “industrial establishment” would be amended to specify that it does not include “an office located in a private residence.”
• Online Harassment: The definitions of “workplace harassment” and “workplace sexual harassment” would be amended to include harassment through the use of “information and communications technology.”
• Health & Safety Meetings: Section 9 of the OHSA would be amended to clarify that Health and Safety Committees do not need to meet “at the workplace” as is currently required. This change would allow for virtual meetings.
• Online Postings: Rather than requiring a physical posting, employers would be allowed to post certain items that the OHSA requires to be posted electronically in a “readily accessible format”, including the OHSA itself, a health and safety policy and a workplace violence and harassment policy. The readily accessible format requirement would be met where: (i) the employer provides workers with direction on where and how to access the information; and; (ii) the information is posted in an electronic format that can be readily accessed in the workplace.
• Washrooms: New duties would be imposed on employers and constructors to ensure washrooms are kept clean and records of the cleaning are maintained. Regulation-making authority with respect to washroom facilities would also be introduced.

What’s Next?

The proposed Working for Workers Five Act, 2024, amendments have not yet been passed into law. Bill 190 was carried at First Reading on May 6, 2024 and carried Second Reading on May 8 and 16, 2024 before being referred to the Standing Committee. The legislative process is expected to continue in the Fall, once the Legislature returns from its summer recess.

If passed, most of the newly proposed changes would come into force on the date the Bill receives Royal Assent. However, certain changes, including the job posting and pay transparency requirements, would come into force on a future date to be proclaimed.