On May 6, 2024, the Ontario Government introduced Bill 190, the Working for Workers Five Act, 2024 (“Bill 190”), which, if passed, will provide new protections for workers, the key details of which are summarized below. The Ontario government has also filed Ontario Regulation 189/24, amending Ontario Regulation 289/01 (Penalties and Reciprocal Enforcement) under the Ontario Employment Standards Act, 2000 (the “ESA”), which increases fines for multiple contraventions of the ESA, as detailed below.
Increased Fines for Multiple ESA Contraventions
In accordance with Ontario Regulation 189/24, the Ontario Ministry of Labour and its inspectors will now have the ability to fine offenders up to $5,000 for a third or subsequent contravention of the ESA in a three-year period. Where such a contravention affects more than one employee, the offender may be fined up to $5,000, multiplied by the number of affected employees. Previously, such fines were subject to a $1,000 maximum (or $1,000 multiplied by the number of affected employees, if applicable).
Bill 190 – Key Changes
Bill 190 seeks to introduce a variety of changes, aimed primarily at increased transparency and fairness for workers, and at supporting women in the workplace, by providing new protections to employees through amendments to the ESA and the Ontario Occupational Health and Safety Act (the “OHSA”).
We note the following key changes set out in Bill 190:
Proposed ESA Changes:
- Increased Transparency in Public Job Postings: Employers will be required to disclose in publicly advertised job postings whether a position is vacant, and to respond to applicants they have interviewed for publicly advertised jobs (subject to exceptions as may be prescribed). Employers will also be required to retain prescribed information provided to job applicants for three years. If passed, the Ministry of Labour plans to consult with stakeholders with respect to the implementation of these changes. These changes would take effect on a date to be named by the Lieutenant Governor;
- Evidence of Entitlement to Sick Leave: Employers will be entitled to ask an employee who takes a job-protected sick leave to provide reasonable evidence in the circumstances of their entitlement to such leave, but may not require an employee to provide a certificate from a qualified health practitioner confirming such entitlement; and
- Increased Fines: Maximum fines for individuals convicted of violating the ESA will increase from $50,000 to $100,000.
Though not captured in Bill 190, we also note the following:
- Minimum Wage Increase: Effective October 1, 2024, the Ontario minimum wage will increase from $16.55 per hour to $17.20; a
- Potential New Serious or Critical Illness Leave: On April 4, 2024, the Ontario Government opened a consultation on a new job-protected leave for employees experiencing serious or critical illnesses. If implemented, it is proposed that this leave would be available for 27 weeks and match the federal Employment Insurance sickness benefits. This consultation closed on May 6, 2024.
Proposed OHSA Changes:
- Telework Protected by OHSA: Section 3 of the OHSA will be amended to provide that the OHSA applies to telework performed in or about a private residence;
- Provision of Clean and Sanitary Washroom Facilities: Employers will be required to ensure that washroom facilities provided to workers are clean and sanitary, and that records (as prescribed by regulation) of the cleaning of such washroom facilities be maintained. Bill 190 currently indicates that these changes would take effect on a date to be named by the Lieutenant Governor;
- Updated Definition of Workplace Harassment: The definition of “workplace harassment” under the OHSA would be amended to include virtual harassment, including virtual sexual harassment. Information from the Government of Ontario also indicates that consultations will be launched with survivors of harassment, legal experts, and other stakeholders to identify potential legislative or regulatory changes to create a duty to act for employers where investigations have identified workplace harassment has occurred;
- Electronic Postings: The posting of certain information in a readily accessible electronic format will now meet the workplace posting requirements of the OHSA. Such information includes, for example, the posting of the OHSA and Ministry published explanatory materials, and policies with respect to workplace violence and workplace harassment (among other things); and
- Virtual JHSC Meetings: Joint health and safety committee meetings would be permitted to be held virtually.
Other Changes
Bill 190 also amends certain provisions of the Building Opportunities in the Skilled Trades Act, 2021, the Fair Access to Regulated Professions and Compulsory Trades Act, 2006, the Ontario Immigration Act, 2015, and the Workplace Safety and Insurance Act, 1997, which we have not discussed in this post. Further details of Bill 190 are available in the Ontario Government’s News Releases and Backgrounder.
Next Steps
If Bill 190 passes, the ESA and OHSA amendments will come into force on the date the legislation receives Royal Assent (or in some cases, on the date that is the later of the date the bill receives Royal Assent or July 1, 2024). As noted above, certain changes will also come into effect on a date to be proclaimed by the Lieutenant Governor.
We will continue to monitor the progress of Bill 190 and provide timely updates.
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