On December 2, 2021 Bill 27, Working for Worker Act (“Bill 27”), received Royal Assent introducing significant changes to employment law in Ontario and has amended several statutes. This legislation aims to achieve a number of goals such as improving employees’ work-life balance, increasing competition in business and labour markets by prohibiting non-compete agreements and implementing a licensing requirement for temporary help agencies and recruiters.
What’s New?
Right to Disconnect
Bill 27 requires that employers with 25 or more employees implement a written “disconnect from work” policy. Employers will have six months from December 2, 2021, to develop policies regarding disconnecting from work during nonworking hours. The term “disconnecting from work” means “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.”
Prohibition of Non-Compete Agreements
The Employment Standards Act, 2000 (the “ESA”) was amended retroactive to October 25, 2021, to prohibit employers from including non-compete clauses in agreements they form with their employees. A “non-compete agreement” is defined 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.” This prohibition is drafted broadly covering not only employment contracts, but “other agreements” between an employer and an employee such as stand-alone restrictive covenants or severance agreements that contain non-compete provisions. Non-solicitation covenants and covenants protecting employers’ confidential information and intellectual property are unaffected by these changes.
However, there are two exceptions to this rule. The first exception is employees in an executive role. An “executive” is defined as “any person who holds the office of chief 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.” The second exception is where there has been “a sale of a business or part of a business”. A purchaser and seller can enter into a non-compete agreement that applies to the purchaser’s business after the sale and immediately following the sale, the seller becomes an employee of the purchaser.
Temporary Help Agencies and Recruiters
Recruiters and temporary help agencies will now be required to have a license to operate in Ontario under the ESA. The license would be issued by the Director of Employment Standards for a term of one year at a time. Bill 27 proposes a regime for license suspension, revocation, and review for a suspension or revocation.
The Employment Protection for Foreign Nationals Act, 2009 was also amended to prohibit employers and recruiters from knowingly using the services of recruiters that charge foreign nationals for their services. If an employer or recruiter violate this provision, they will be liable for repaying the fees charged to the foreign national. Additionally, where the recruiter is a corporation, its directors will be jointly and severally liable to repay the fees that were charged to the foreign national.
Facilitating the Registration of Internationally Trained Professionals
Bill 27 has also amended the Fair Access to Regulated Professions and Compulsory Trades Act, 2006 by removing barriers such as Canadian experience requirements, for internationally trained individuals to get licensed in certain regulated professions. However, regulated professions may apply to be exempted from this rule “for the purposes of public health and safety in accordance with the regulations.” Additionally, regulated professions will still have to comply with regulations respecting English or French language proficiency testing.
Mandating Washroom Access for Delivery Persons
The Occupational Health and Safety Act has been amended to create a new requirement for business owners to allow delivery workers to use the company’s washroom if they are delivering or picking up items. Businesses can be exempt from this requirement for the following reasons. First, is if providing access would not be reasonable or practical to the health or safety of any person at the workplace. Second, is if providing access would not be reasonable or practical having regard to all the circumstances, such as, the nature of the workplace, the type of work at the workplace, the conditions of work at the workplace, the security of any person at the workplace and the location of the washroom within the workplace. Third, is if the washroom is in or can only be accessed through a dwelling.
Distribution of Surplus Insurance Fund
The Workplace Safety and Insurance Act, 1997 (the “Act”) was amended allowing surpluses in the Workplace Safety and Insurance Board’s (“WSIB”) Insurance Fund to be distributed over certain levels to businesses, which will help businesses cope with the impacts of COVID-19. The WSIB can distribute amounts in the insurance fund in excess of prescribed amounts to eligible employers. Based on factors such as adherence to the Act, the WSIB will have discretion to determine the timing and amounts granted to these employers.
Increasing Information Gathering in Relation to “agriculture, food or rural affairs”
Finally, Bill 27 has amended the Ministry of Agriculture and Rural Affairs Act enabling the Ministry of Agriculture, Food and Rural Affairs to collect information regarding the agri-food workforce. This collection is for the purpose of emergency response and public health enhancing the coordination of services of vaccination and testing.
What’s Next
It is important note that some amendments come into force at different times. Employers should review the legislation to note important dates and changes that are relevant to their organization. It is also recommended for employers to review their internal policies and agreements to ensure that they are in compliance with the new legislation.
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These comments are of a general nature and not intended to provide legal advice as individual situations will differ and should be discussed with a lawyer.
