Photo by Christina @ wocintechchat.com on Unsplash

In March, we blogged about Bill 88 or the Working for Workers Act (part 2) (the Act). You can read that post here. On April 11, 2022, the Act received Royal Assent, making it now law. Most significant to employers, who are not Uber etc., are the changes to the Employment Standards Act, 2000  (ESA) and the Occupational Health and Safety Act (OHSA). The Act has attracted the most attention for the creation of the Digital Platform Workers’ Rights Act, 2022, which will have big implications for digital platform workers and “employers” like Uber and Skip the Dishes, however, the Act impacts non-digital platform employers too. 

Here’s the rundown of what’s new in the ESA and the OHSA.

ESA:

Non-Application of the ESA to Business and IT Consultants

The Act adds provisions to clarify the non-application of the ESA to business and IT consultants who meet certain criteria. Whether consultants are employees who might fall under the provisions of the ESA or true consultants/contractors is often a hot issue. These changes to the ESA clarify that if business and IT consultants meet certain requirements, such as being paid an amount at least equal to $60 per hour, then they will not be considered employees under the ESA. 

Written Policy on Electronic Monitoring of Employees 

Employers who employ 25 employees or more, on January 1 of any given year, are required to have a written policy with respect to the electronic monitoring of employees. The purpose of the policy is to let employees know they are being monitored, versus to restrict what an employer might do with that monitoring information. Employee monitoring has become a salient issue with remote work and employers figuring out various ways (ie. electronic monitoring) to determine that employees are actually working when they can’t physically see them in an office. 

The Policy will be required to contain the following information:

1. Whether the employer electronically monitors employees and if so,
   • a description of how and in what circumstances the employer may electronically monitor employees, and
   • the purposes for which information obtained through electronic monitoring may be used by the employer.
2. The date the policy was prepared and the date any changes were made to the policy.
3. Such other information as may be prescribed. 

Employees will need to be provided with a copy of the policy within 30 days from the day the employer is required to have the policy in place or within 30 days of the changes to the policy if changes are made. New employees will need to be provided with the policy within 30 days of becoming an employee. 

Employers have six months to get this policy in place, so put October 11, 2022, in the calendar! 

Thereafter, employers who have 25 employees or more on January 1 of any given year will need to have a policy in place by March 1 of that same year. The headcount is taken on January 1, so note that even if an employer had fewer than 25 employees later in the year the policy would still be required. 

OHSA:

Naloxone Kit Requirement 

If an employer is aware, or ought reasonably to be aware, that there may be a risk of a worker having an opioid overdose at the workplace where the worker works, the employer must have and maintain a naloxone kit in that workplace. The employer must also ensure that someone who works near the kit has been properly trained on how to use it. Proper training includes training to:

• Recognize an opioid overdose
• Administer naloxone
• Acquaint the worker with any hazards related to the administration of naloxone

Worker privacy is acknowledged by a section limiting disclosure of information to only what is reasonably necessary to comply with the section. 

There is no timeline by which an employer needs to comply, as the employer will only need to have a kit and a trained worker near the kit knowing how to use it where there is a risk of opioid overdose in the workplace.

Increased Fines Under OHSA

The maximum fine for OHSA violations is increased from $100,000 to $1,500,000 for directors or officers of corporations and to $500,000 for other individuals.

Increased Time For Prosecution of Offences Under OHSA 

This is increased from one year to two. 

If you have questions about ESA or OHSA compliance or would like help drafting a written policy on electronic monitoring, get in touch for a consultation!