April 18, 2022
by Israel Foulon Wong LLP

Summary

Bill 88, Working for Workers Act, 2022 (“Bill 88”), has become law after receiving royal assent on April 11, 2022. Our previous e-bulletin on Bill 88, which you can review HERE, discussed that the omnibus legislation would amend sections of the Employment Standards Act, 2000, and the Occupational Health and Safety Act, and enact the Digital Platform Workers’ Rights Act, 2022. Having passed all three readings and having received royal assent, Bill 88 now introduces new features into provincial employment standards and the occupational health and safety regime, while also establishing a series of rights and entitlements for various types of gig workers.

This article provides a summary of the key amendments and new requirements now made effective by Bill 88. For further detail, please consult the complete Bill 88 HERE.

Updates to the Employment Standards Act, 2000 (the “ESA”) – Effective April 11, 2022

Policy on electronic monitoring

Bill 88 introduces a new Part XI.1 into the ESA which governs written policies on electronic monitoring.  Businesses that 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 by March 1^st of that same year. The written policy must detail whether the employer electronically monitors employees and if so, the employer must provide a description of how and in what circumstances it may electronically monitor employees, and the purposes for which information obtained through electronic monitoring may be used by the employer. Please note that “electronic monitoring” is not currently defined by the statute.  The legislation does not limit or affect the ability of employers to use information obtained through employee monitoring.

The policy must indicate its effective date and the date(s) of any subsequent changes. The policy will also need to include any other information that may be prescribed by the legislation (no such other information is currently prescribed). The policy must be provided to existing employees within thirty (30) days from the day the employer is required to have the policy in place, and updated policies must be provided within thirty (30) days of any change(s). New employees must be provided with the policy within thirty (30) days of commencing employment, or within thirty (30) days from the day the employer is required to have such a policy in place, whichever is later.

Employers who use temporary assignment employees must provide such employees with this policy within twenty-four (24) hours of the employees starting their assignment, or within thirty (30) days from the date the employer is required to have such a policy in place, whichever is later.

Employers have six (6) months from April 11, 2022 to provide policies on electronic monitoring of employees, and an employer is to make the determination of whether it currently needs such a policy based on whether it employed twenty-five (25) or more people as of January 1, 2022. A record of the policy must be kept for three (3) years after it is no longer in effect.

Employees are entitled to file an ESA complaint for the employer’s failure to provide the policy within the statutorily prescribed time. Bill 88 does not provide any means for an employee to file a complaint regarding the policy’s content or for a failure by the employer to abide by such a policy. Moving forward, the Lieutenant Governor in Council is empowered to create regulations governing exemptions, terms of employment, further requirements and/or prohibitions relating to Part XI.1 or any of the transitional issues arising out of the amendments introduced by Bill 88.

Other Updates to the ESA – Effective January 1, 2023

Bill 88 also introduces new definitions of “business consultant” and “information technology consultant” into the ESA. These new definitions work in tandem with new sections in the ESA to exclude certain business and information technology consultants from the purview of the ESA. Generally speaking, to be excluded from the ESA, business and information technology consultants must meet the following requirements:

• They must provide services as described by the newly introduced definitions;
• They must provide same services through corporations in which they are directors or party to a unanimous shareholder agreement, or through sole proprietorships registered under the Business Names Act;
• The agreement between such consultants and the employer must stipulate base pay as an hourly rate, which must be equal to or greater than $60 per hour; and
• The consultants must be paid pursuant to the aforementioned agreement.

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

Bill 88 also enacts the Act, which cements minimum rights for workers (including contractors) who perform digital platform work. The Act defines “digital platform work” 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.” The Act defines a “digital platform” as 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 ESA. The Act is presumptively integrated into the collective agreements of unionized workers as well, as applicable.

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

• The right to information such as the operator’s regular pay period and recurring pay day, how pay is calculated, whether, when and how tips and gratuities are collected by the operator, and information on the use and application of different factors to determine the assignment of work. This information must be provided in writing within twenty-four (24) hours of the worker being given access to an operator’s digital platform for the purpose of performing digital platform work. Workers are also entitled to information about performance ratings, about the consequences of failing to perform any assignment, and about any changes to the above information.

• The right to a recurring pay period and pay day, and the right to minimum wage in accordance with the ESA, where tips and gratuities are not included in calculating the minimum wage.

• 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, which notice comprises a written explanation for the worker’s removal. 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 or other prescribed circumstances.

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

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

The Act also imposes record-keeping obligations on operators, and joint and several liability on directors for amounts owing to workers under the Act in prescribed circumstances. The Act introduces a compliance and enforcement mechanism, and specific rules of procedure for same. Contraventions of the Act are offences which may result in possible penalties of fines, imprisonment or both.

It is important to note that operators and workers cannot contract out of the Act and any such attempts to contract out would be voided by the Act unless the relevant contract or another statute provides a greater right or benefit relating to the same subject matter.

The Act will come into force on a day to be proclaimed by the Lieutenant Governor.

Amendments to the Occupational Health and Safety Act, 2000 (the “OHSA”) – Various effective dates

The OHSA is now updated to require that employers 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. These amendments related to naloxone kits will come into force on a day to be proclaimed by the Lieutenant Governor.

Bill 88 also increases the OHSA’s fines in the event that an employer fails to maintain a healthy and safe work environment, and which failure 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 to $500,000 for other individuals.  Bill 88 introduces various aggravating factors that can be considered to fix the amount of any fine.

Bill 88 also permanently extends the limitation period for instituting a prosecution from one (1) year to two (2) years. These changes to the OHSA come into force on July 1, 2022.

Take Away for Employers

Now that it is law, Bill 88’s amendments will require most employers to introduce an electronic monitoring policy. These legislated changes are a 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, but the policy required by the updated ESA will still require careful consideration and drafting. No definition of “electronic monitoring” has been provided in the legislation, but, in our view, such a term would cover any monitoring of an employee’s email or internet use, which is common in most workplaces. 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 are not required to comply with the Digital Platform Workers’ Rights Act, 2022. However, businesses that meet the definition of “operator” under the Act have many new positive obligations to comply with key requirements of the Act.

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.