The Ontario government has proposed legislative amendments to require companies to establish a 'right to disconnect' policy for their employees and to ban non-competition provisions in employment agreements. If enacted, this legislation would be a first in Canada.
The proposed amendments to the Ontario Employment Standards Act, 2000 include the following:
- 'Right to disconnect': companies with 25 or more employees would be required to develop written 'disconnecting from work' policies meant to limit requirements to respond to email, attend calls and otherwise engage in work outside of normal work hours.
Already the law in France, the European Parliament passed a legislative initiative on the right to disconnect earlier this year. We note that, unlike in Europe, the Ontario proposal only requires employers to prepare a policy and provide a copy to its employers, and does not create new legal entitlements for employees. It is proposed that employees would have six months from the date the legislation is enacted in order to put in place the required policy.
- No 'Non-competes': companies would be prohibited from including non-competition provisions in any agreement with their employees. Non-competition provisions are commonly included in employment agreements, particularly where the employee has a higher level of responsibility or access to competitively sensitive information.
We note that there is an exception in an M&A context where, as a part of the transaction, the seller agrees not to compete with the purchaser's business after the sale and, immediately following the sale, becomes an employee of the purchaser.
- Temporary help agencies & recruiters: new licensing requirements will prohibit companies from operating as a temporary help agency or acting as a recruiter without a licence for that purpose. As part of the application process, prospective companies would be vetted and would be required to provide an irrevocable letter of credit that could be used to repay owed wages to workers.
A prohibition against knowingly engaging or using the services of an unlicensed temporary help agency or recruiter is also included. The government has indicated that if the legislation is passed, it intends to require licences as early as 2024.
In addition, the Ontario Occupational Health and Safety Act is proposed to be amended as follows:
- Washroom access: workplace owners would be required to allow delivery workers access to their washrooms. This provision seems particularly designed to address widely-reported allegations from employees of a particular delivery company earlier this year.
The legislation passed first reading on October 25.
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