On December 2, 2021, the Ontario government passed Bill 27, Working for Workers Act, 2021, introducing significant changes to workplace laws. The most significant changes include:
- Right to Disconnect from Work: Employers, subject to the Employment Standards Act, 2000 (“ESA”), with 25 or more employees, must have a written policy for disconnecting from work. The term “disconnecting from work” is defined to mean not engaging in work-related communications, like emails or calls, and not sending or reviewing any messages, so that employees are free from the performance of work outside of normal working hours. The policy must include the date it was prepared and when any changes were made to it if any. Employers have six months beginning December 3, 2021 to comply with the requirements.
- No Non-Compete Agreements: Employers subject to the ESA are prohibited from entering into employment contracts or other agreements with an employee that are, or that include, a non-compete agreement. A “non-compete agreement” is defined as an agreement between an employer and employee that prohibits the employee from engaging in anything that competes with the employer’s business, once the employment relationship ends.
There is an exception to the prohibition on non-competition agreements in the event of a sale or lease of a business and for executive-level employees. “Executive” for the purposes of this provision 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 any other chief executive position.”
This amendment to the ESA is deemed to be in force as of October 25, 2021. This means that any pre-existing non-compete agreements before this date remain unaffected, but any agreements entered into beginning October 25, 2021 and on will be unenforceable and void if they contravene the new provisions. There is nothing in the amendments to suggest that the use of restrictive covenants such as non-solicitation, confidentiality, and assignment of intellectual property agreements are affected by the new amendments.
- Licensing for Temporary Help Agencies and Recruiters: The ESA is amended so that both temporary help agencies and recruiters must hold a valid licence to operate as an agency or recruiter. Employers may only knowingly engage or use a recruiter’s services if the recruiter holds a valid licence.
- No Fees for Recruiting Foreign Nationals: The Employment Protection for Foreign Nationals Act, 2009 is amended to prohibit recruiters or employers, when recruiting a foreign national, from knowingly using the services of a recruiter that has charged a fee to a foreign national.
- Workplace Washroom Access: The Occupational Health and Safety Act is amended to require owners of workplaces to provide washroom access to persons making deliveries to or from the workplace. Exceptions to this include where providing access would be unreasonable or impractical for reasons related to the health and safety of any person at the workplace.
- Distribution of WSIB Insurance Fund Surplus: The Workplace Safety and Insurance Act is amended to require the Workplace Safety and Insurance Board (“WSIB”) to distribute surplus amounts in the insurance fund to Schedule 1 employers.
- Removal of Canadian Experience: The Fair Access to Regulated Professions and Compulsory Trades Act, 2006 is amended to prohibit regulated professions from requiring “Canadian experience” as a qualification for registration, unless it is required for purposes related to health and safety. To facilitate this, the Minister of Citizenship and Immigration can support internationally trained individuals to gain access to regulated professions by providing information, assistance, and research in certain circumstances outlined.
Bill 27 introduces major changes to workplaces in Ontario. Employers should be proactive and review employment agreements entered into on October 25, 2021 and after to ensure they do not include prohibited non-compete clauses. Employers should also canvass engaged recruiting services and temporary help agencies to determine if they are licensed, and begin to identify potential inclusions to the “disconnect from work” policy that they will be required to draft, such as response time for emails, out of office notifications, and time-delayed sending of emails.