March 14, 2022
by Israel Foulon LLP

Summary

On February 28, 2022, the Ontario government proposed Bill 88, Working for Workers Act, 2022 (“Bill 88”), which passed at first reading. If it becomes law, Bill 88 will amend sections of the Employment Standards Act, 2000, and the Occupational Health and Safety Act. Bill 88 also introduces the Digital Platform Workers’ Rights Act, 2022, which would establish various rights and entitlements for gig workers.

This article provides a summary of the key amendments and new requirements introduced in Bill 88. For further detail, please consult the complete Bill 88 HERE.

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

Businesses who employ twenty-five (25) or more employees (as of January 1^st of any year) will be required to have a written policy with respect to electronic monitoring of employees (“electronic monitoring” is not currently defined). The written policy must detail whether the employer electronically monitors employees and if so, provide 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. The policy will also need to include any other information that may be prescribed by the legislation.

Employers will be entitled to a six (6) month transition period to roll out their policies from the date Bill 88 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 from the date that the policy is created or amended, or within thirty (30) days of when a new employee first begins work. A record of the policy must be kept for three (3) years after it is no longer in effect.

It is important to note that the legislation clarifies that employers are still entitled to use information obtained through employee monitoring. Further, if an employee files an ESA complaint, the complaint can only relate to the employer failing to have a policy in place or failing to provide it to the employee within the required time. An employee cannot file a complaint regarding the policy’s content or a failure by the employer to abide by the policy.

Proposed Introduction of Digital Platform Workers’ Rights Act, 2022 (the “Act”)

The Act introduces minimum rights for workers (including contractors) who perform digital platform work, which is defined as “the provision of for payment ride share, delivery, courier or other prescribed services by workers who are offered work assignments by an operator through the use of a digital platform.” A “digital platform” is an online platform that allows workers to choose to accept or decline digital platform work. An “operator” is defined as a person that facilitates, through the use of a digital platform, the performance of digital platform work by workers, but does not include a temporary help agency within the meaning of the Employment Standards Act, 2000.

The Act outlines that all digital platform workers will be entitled to the following rights:

• The right to information
  • For example, the operator must provide a description of how a worker’s pay is calculated and whether tips and gratuities are collected and how

• The right to a recurring pay period and pay day, and the right to minimum wage in accordance with the ESA
  • Tips and gratuities are not included in minimum wage calculation

• The right to amounts earned by the worker and to tips and other gratuities
  • Unless deducted or withheld by the operator with the consent of the worker, or as otherwise required by statute or court order

• The right to notice of removal from an operator’s digital platform
  • Operators are required to provide a written explanation as to why the worker is being removed from the platform
  • If access is removed for 24 hours or longer, the worker must be given two weeks  written notice of removal, unless the worker is removed due to wilful misconduct

• The right to resolve digital platform work-related disputes in Ontario

• The right to be free from reprisal, including for exercising their rights or inquiring about their rights under the Act

It is important to note that operators and workers cannot contract out of the Act unless their contract or another statute provides a greater right or benefit relating to the same subject matter.

If passed, the Act will come into force on the day established by the Lieutenant Governor.

Proposed Amendments to the Occupational Health and Safety Act, 2000 (the “OHSA”)

Bill 88 will require employers to provide naloxone kits if the employer becomes aware, or ought reasonably to be aware, that there may be a risk of a worker having an opioid overdose at a workplace, or where the prescribed circumstances exist. Employers will also be required to maintain the kit and provide relevant training, including training to recognize opioid overdose.

Bill 88 also proposes increases to fines in the event that an employer fails to maintain a healthy and safe work environment that leads to severe injury or death of a worker in the workplace. Specifically, the maximum fine will be increased from $100,000 to $1,500,000 for directors or officers of corporations and $500,000 for other individuals. Finally, the limitation period for instituting a prosecution is extended from one year to two years.

If passed, the amendments related to naloxone kits will come into force on the day established by the Lieutenant Governor. The remaining amendments will come into force on the later of July 1, 2022 and the day Bill 88 receives Royal Assent.

Take Away for Employers

If passed, Bill 88 will introduce amendments to the ESA that will require employers to introduce an electronic monitoring policy. These changes come in response to concerns that employers are infringing on employee privacy rights while working remotely. Many employers may already have the relevant details regarding monitoring in their existing company IT or related policies. We recommend you contact us to assist with reviewing and/or implementing any electronic monitoring policy.

Employers who do not participate in digital platform work as defined above will not be required to comply with the Digital Platform Workers’ Rights Act, 2022. However, businesses that meet the definition of “operator” under the Act will be required to comply once Bill 88 passes. Please contact us for any questions regarding the practical implications of this new legislation so that we can assist you in developing practices and procedures relevant to your workplace.

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 we are working remotely when possible. However, please be aware that our offices remain open and are fully functioning and we are holding in person meetings as required.  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.