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New labour law includes important first steps, but more needed

Queen's Park
Special Report
Amendments to Ontario employment laws may improve working conditions for some but will need prescribed measures to ensure the reforms bring real and lasting change.
 
Government Bill 27, named the Working for Workers Act, was passed by the Ontario Legislature and given Royal Assent December 2, 2021. The omnibus bill amends six Ontario statutes including three important labour laws: the Employment Standards Act (ESA), the Occupational Health and Safety Act (OHSA) and the Workplace Safety and Insurance Act (WSIA).
 
Workers and their representatives are looking to these changes to improve work/life balance especially as evolving work arrangements now include hybrid and remote work models.

The “right to disconnect”

The change garnering the most attention has been called the “right to disconnect”. During the pandemic technology enabled many to work remotely from home. For many though this increased the blurring of work/life boundaries, longer workdays, often without compensation, and resulting job stress. Even prior to the pandemic research had shown when workers perform work-related activities outside of normal work hours it adds to job strain and impedes sleep and work performance.

Ontario is the first Canadian jurisdiction to pass such a law. The Employment Standards Act (ESA) (Part VII.0.1) now defines “disconnecting from work” 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.”
 
Under new legal requirements:
  • Employers who employ 25 or more employees must ensure they have a written policy on disconnecting from work. Employers have six months to comply with this initial requirement.  
  • Every year thereafter employers (with 25 or more employees) must have their written policy in place by March 1, with the date it was prepared and the date of any changes to the policy.
  • Employers must provide a copy of the written policy to each employee within 30 days of it being prepared or changed. New employees must receive a copy within 30 days of being hired.

The amendments though do not prescribe the contents of a workplace right to disconnect policy, (although they leave open the door to this possibility). Nor do they require worker participation in development or implementation of a required policy.

France, the first to enshrine a right to disconnect, requires employers to consult with employees to establish specific policy parameters. Earlier this year the European Parliament approved a resolution on the right to disconnect and have recommended a specific workplace directive to establish minimum standards for remote working, clarify working conditions, hours and rest periods.

Licensing for Temp Agencies and Recruiters

Work assigned through temp agencies often comes with poor pay, little or no training and sometimes dangerous working conditions. During the pandemic temp agency workers, who are overrepresented in essential workplaces, have suffered higher rates of COVID-19 infection.

A new provision of the ESA (Part XVIII.1) aims to help address these systemic problems by mandating licensing requirements for both temporary help agencies and recruiters. It also prohibits anyone from engaging with or using the services of providers who are not licensed. The licenses expire one year after being issued or renewed. The government intends to post online the name of every person licensed as a temp agency or recruiter, including those whose licenses have been revoked or suspended. Various aspects of the law will come into force on a staggered timetable. The changes also anticipate related regulations to govern this new licensing regime although they have not been brought forward at this time. Unlike Acts or statutes, regulations do not require approval of the legislature.

Increased driver access to bathroom facilities

Bill 27 also amends section 29 of the Occupational Health and Safety Act by adding this provision: “The owner of a workplace shall ensure that access to a washroom is provided, on request, to a worker who is present at the workplace to deliver anything to the workplace, or to collect anything from the workplace for delivery elsewhere.”
 
Most businesses will have to allow use of their washrooms by delivery workers. Some may claim an exemption if sharing the washroom is unreasonable or impractical for health and safety reasons, due to the circumstances and/or conditions of the workplace or type of work, or if access involves entering a personal dwelling.
 
At present drivers will have to wait for this legislative protection. There is no named date for these changes to come into force. And while drivers and delivery couriers may benefit in future, the amendments fail to address the concerns of public transit vehicle operators for whom access to bathrooms on the job is a longstanding health and safety issue.  

Distributing WSIB surpluses to employers

For injured worker advocates Bill 27 amendments to the Workplace Safety and Insurance Act are controversial and disappointing. New provisions provide in some circumstances for the Workplace Safety & Insurance Board to distribute surplus insurance funds among employers.
 
Worker advocates want restitution to injured workers incorporated into the formula for determining Board surpluses. A recent government-commissioned independent review found that work-related cancers are greatly underrecognized and undercompensated in Ontario. Other reports find that claims suppression continues as well. These provisions will come into force on a date to be named later.

Employer OHS training obligations

Employers have the greatest legal responsibility for the protection of workers but Ontario’s Occupational Health and Safety Act (OHSA) also recognizes the rights, obligations and roles of others in pursuit of prevention, namely joint health and safety committee (JHSC) members and worker health and safety representatives. 
 
If your workplace employs 20 or more workers or a designated substance is onsite, the OHSA requires the establishment of a JHSC. In this case, employers must also "carry out" approved Certification training for at least two members of the JHSC, one worker representative and one management representative, including Certification Part ICertification Part II and Certification Refresher

Many workplaces choose to train all JHSC members to strengthen their in-house capacity to address the ongoing COVID-19 crisis and to ensure other workplace hazards aren’t overlooked. In smaller workplaces where worker health and safety representatives are mandated, some employers recognize the utility of this training and ensure they complete it too. WHSC offers a suite of these programs, many of which are currently available through online virtual classrooms.
 
These courses, as well as GHS-WHMIS and Mental Health at Work training programs, are available in our online, virtual classrooms.
 
Meantime, WHSC-scheduled in-person training includes Working at Heights and Working at Heights Refresher training.



Don’t see what you need? Beyond the scheduled classes listed above, and where participant numbers warrant, we can work with you to coordinate almost any of our training courses, including our COVID awareness training, for all workers, workplace representatives and supervisors.

Contact a WHSC training services representative in your area.
Email: contactus@whsc.on.ca
Visit: www.whsc.on.ca
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