On October 28, 2024, Bill 190, Ontario’s Working for Workers Five Act, 2024, received Royal Assent. Bill 190 impacts provincially regulated employers by amending various statutes, including the Employment Standards Act, 2000, the Occupational Health and Safety Act and the Workplace Safety and Insurance Act, 1997. Focus readers will recall our earlier article when the Bill was at first reading.
Here are some key changes that are likely to impact your workplace.
Employment Standards Act, 2000 (ESA)
The following amendments regarding sick leave requirements and maximum fines have been in force since October 28, 2024:
- Proof of Entitlement to ESA Sick Leave
The newly introduced changes to the ESA prohibit employers from requiring employees to provide a certificate from a qualified health care practitioner (a medical note) as proof of their entitlement to sick leave under the ESA. Employers may request an employee to provide information “reasonable in the circumstances” of the employee’s entitlement to sick leave under the ESA. The Ontario government previously communicated that future Ministry guidance would be developed on this issue.
- Increased Fines for Violating the ESA
The maximum fine for an individual convicted of violating the ESA has been increased from $50,000 to $100,000.
The following amendments regarding publicly advertised job postings and interviews will come into force on a date to be proclaimed in the future:
- Publicly Advertised Job Postings and Interviews
Employers who publicly advertise job postings will be required to include a statement in the job posting indicating whether the position is for an existing vacancy. Additional requirements for information and exceptions may be prescribed by regulation. Employers will have to retain copies of every publicly advertised job posting and any associated application form for three (3) years after access to the posting by the general public is removed.
Employers who interview an applicant for a publicly advertised job posting must provide the applicant with prescribed information within a prescribed timeframe. As of the date of publication, no timeframe or information was prescribed by regulation. Employers will be required to retain copies of all prescribed information provided to such applicants for three (3) years after the day the information was provided to the applicant.
In August 2024, the Ontario government launched public consultations on these new job posting provisions of the ESA prior to their implementation in addition to the job posting rules that were passed under Bill 149, Working for Workers Four Act, 2024, also not yet in force (see our previous Focus Alert on Bill 149). In its Consultation Paper on Job Posting Rules in the Employment Standards Act, 2000, the government sought input from employers and stakeholders on some of the following:
- The definition of “publicly advertised job posting” and “artificial intelligence” (AI);
- Whether there should be an exemption from the requirement to disclose compensation for higher-paid positions;
- When disclosing an expected range of compensation for a position, what range of expected compensation would be reasonable;
- Whether there is any other information that should be required to be disclosed in a publicly advertised job posting;
- What information should be provided following a job interview and the appropriate timelines? For example, is 30 calendar days a reasonable amount of time for an employer to be required to follow up with an interviewee;
- Whether there should be any exceptions regarding the prohibition on the requirement for Canadian experience, the requirement to disclose whether a posting is for an existing vacancy (for smaller employers), and the requirement to disclose the use of AI.
The consultation results have yet to be shared, but we will update Focus readers once this information is available.
Amendments to the Occupational Health and Safety Act (OHSA)
Bill 190 makes several amendments to the OHSA, which are now in force, including:
- Clarifying that the OHSA applies to telework performed in or about a private residence;
- Updating the definitions of “workplace harassment” and “workplace sexual harassment” to include harassment that occurs virtually through the use of information and communication technology; and
- Providing that the employer’s occupational health and safety policy, a copy of the OHSA, and any explanatory material prepared by the Ministry of Labour may be posted in a readily accessible electronic format. In other words, with this amendment, employers now have the option to continue to post hard copies of these documents in a conspicuous place or places in the workplace (as previously required) or to post them in a readily accessible electronic format.
- Allowing joint health and safety committee meetings to be held virtually.
Furthermore, the Bill will require employers and constructors to ensure that washroom facilities provided for workers are maintained in a clean and sanitary condition. Employers and constructors will have to keep records to demonstrate the cleaning of washroom facilities as prescribed. Bill 190’s new requirements with respect to washroom facilities will come into force on a future date to be proclaimed.
Amendments to the Workplace Safety and Insurance Act, 1997 (WSIA)
Bill 190 changes to the WSIA now in force include extending presumptive coverage for occupational post-traumatic stress disorder to wildland firefighters and wildland fire investigators.
On a future date to be proclaimed, the Bill will also extend presumptive coverage for primary-site skin cancer to wildland firefighters and wildland fire investigators, provided that they were employed as a full-time firefighter, part-time firefighter, or fire investigator, or served as a volunteer firefighter, for a total of at least ten (10) years before being diagnosed.
In Our View
We will continue to monitor the coming into force of various provisions of Bill 190 and share important developments with Focus Alert readers.
For more information, please contact Fabienne Lajoie at 613-301-9612 or Paul Lalonde at 613-795-1752.
