October 27, 2021 by Israel Foulon LLP
Summary
On October 25, 2021, the Ontario government proposed Bill 27, Working for Workers Act, 2021 (“Bill 27”). If passed, Bill 27 will amend sections of the following legislation relating to Ontario workplaces:
- the Employment Standards Act, 2000,
- the Occupational Health and Safety Act,
- the Workplace Safety and Insurance Act, 1997,
- the Employment Protection for Foreign Nationals Act, 2009,
- the Fair Access to Regulated Professions and Compulsory Trades act, 2006, and
- the Ministry of Agriculture, Food and Rural Affairs Act.
The proposed amendments aim to redefine the remote work landscape by requiring employers with twenty-five (25) or more employees to have a written policy that encourages employees to disconnect from their jobs at the end of the workday.
Bill 27 will also ban the use of non-competition clauses within employment agreements, which typically restrict employees from working for a direct competitor or within a particular industry from a specified period of time.
You can review Ontario Newsroom Backgrounder for further information HERE.
Proposed Amendments to the Employment Standards Act, 2000
Businesses who employ twenty-five (25) or more employees (as of January 1st of any year) will be required to have a written policy encouraging employees to disconnect from work. Disconnecting from work is defined as “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.” A record of the policy must be kept for three (3) years after it is no longer in effect.
Employers will be entitled to a six (6) month transition period to roll out their policies from the date Bill 27 comes into effect. The policy must include the effective date and the dates of any subsequent changes, and must be distributed within thirty (30) days that the policy is created, amended, or within thirty (30) days of when a new employee begins work.
Additionally, temporary help agencies and recruiters would be required to become licenced, and require agencies to renew their licences with the Director of Employment Standards.
Prohibition on Non-Compete Clauses
If passed, Bill 27 will prohibit employers from including non-competition clauses as part of employment contracts. Non-competition clauses typically restrict an employee’s ability to work for a direct competitor, or within a particular field, for a specified period of time and within a specific geographic location. If a non-competition agreement is entered into, it will be deemed void.
The proposed legislation provides an exception in the event of a sale of business. The purchaser would be permitted to enforce a restriction against the seller from engaging in business activity that competes with the purchaser’s businesses after the sale, provided the seller does not become an employee of the purchaser following the sale.
The proposed prohibition is in line with Ontario courts’ long-standing view that non-competition clauses are void as a general rule and will only be enforced in exceptional circumstances, where a non-solicitation clause would be insufficient to protect and employer’s proprietary interests. If Bill 27 is passed, Ontario will become the first jurisdiction in Canada to ban non-competition clauses.
Proposed Amendments to the Occupational Health and Safety Act
The owner of the workplace will be required to provide access to a washroom to any person making deliveries to or from the workplace, subject to certain exceptions. Specifically, a business is not required to provide access to their washroom for the following reasons:
- if doing so would risk the health or safety of any person at the workplace, including the individual who requests to use it;
- if providing access would not be reasonable or practical in the circumstances based on the nature of the workplace, type of work, conditions of the workplace, or security of any person at the workplace, and the location of the washroom; or
- the washroom can only be accessed through a dwelling.
Proposed Amendments to the Workplace Safety and Insurance Act, 1997
In certain circumstances the WSIB is permitted or can be required to distribute amounts in the insurance fund in excess of the amounts among Schedule 1 employers.
Take Away for Employers
If passed, Bill 27 will introduce amendments to the ESA that will require employers to introduce a workplace disconnect policy, encouraging employees to disconnect from work. The changes come in response to evidence of wide-spread employee burnout following the adoption of remote work necessitated by the onset of the COVID-19 pandemic. We recommend you contact us to assist with implementing your workplace disconnect policy.
In light of the proposed amendments, we further recommend that employers contact us to have their employment agreements reviewed, and revised and updated in order to ensure the protection of their proprietary information. Employers who have previously relied on non-competition clauses within their existing employment agreements may consider the use of confidentiality, intellectual property and non-solicitation agreements to prevent the misuse of company information and customer/client lists.
Israel Foulon Wong’s Response to COVID-19
Israel Foulon Wong LLP is assessing the situation as it evolves, and is taking all necessary precautions within its workplace. To slow the spread of COVID-19 and for the health of our team and clients, absent extraordinary circumstances we are working remotely until further notice whenever possible. However, please be aware that our offices remain open and are fully functioning. In the circumstances, we encourage our clients to contact us by phone and email to the extent possible. Voicemail messages left at our office phone numbers are immediately forwarded via email. All messages will be promptly responded to. We remain steadfast in our commitment to our clients and would be more than happy to assist you with concerns regarding COVID-19 or any other employment or labour matters.