Bill 88, the Working for Workers Act, 2022,1 is now in force. Bill 88 passed third reading in the Ontario Legislature on April 7, 2022, and received Royal Assent on Monday April 11, 2022.2
Bill 88 makes a number of changes that will impact employers and employees alike. Most notably, it:
- enacts the standalone Digital Platform Workers' Rights Act, 2022;
- removes certain business consultants and information technology consultants from the scope of the Employment Standards Act, 2000 ("ESA");
- creates a new requirement under the ESA for employers with 25 or more employees to have a written policy about electronic monitoring;
- expands reservist leave under the ESA by providing that an employee is entitled to leave if the employee is participating in Canadian Armed Forces military skills training, and reducing the qualifying period for reservist leave from 6 to 3 months' continuous employment;
- amends the Occupational Health and Safety Act by extending the limitation period for prosecutions from 1 to 2 years, increasing maximum fines for convictions, and requiring employers to provide a naloxone kit in workplaces where opioid overdoses are a potential hazard; and
- reduces delays for certain individuals who apply for registration with certain regulated professions in Ontario.
These changes are reviewed further below. Note that many of the changes do not come into force immediately.
Bill 88 was also intended to deregulate the practice of traditional Chinese medicine and acupuncture. However, the Standing Committee on Social Policy removed the schedule in Bill 88 that would have repealed the Traditional Chinese Medicine Act, 2006. The practice of traditional Chinese medicine and acupuncture will therefore continue to be subject to the oversight of the regulatory college.
Bill 88 is the Province's follow-up to Bill 27, the Working for Workers Act, 2021,3 which received Royal Assent on December 2, 2021. Among other things, Bill 27 introduced a new requirement for employers to enact policies regarding disconnecting from work (required by June 2, 2022), prohibited employee non-compete agreements, removed Canadian experience requirements, and set out a new licensing regime for recruiting and temporary help agencies.4
What's New in Bill 88? Essential Details for Ontario Employers:
1. Creation of a New Digital Platform Workers Rights Act, 2022
Bill 88 enacts the new Digital Platform Workers Rights Act, 2022, which creates rights for workers who accept work through a digital platform, regardless of whether or not they are an employee of the platform.
The Digital Platform Workers Rights Act, 2022, will come into force on a date still to be determined.
Digital platform work is defined in the legislation 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 following worker rights and obligations are codified in the digital platform legislation:
- the right to information, including with respect to remuneration, work assignments, and performance ratings;
- the right to a recurring pay period and pay day;
- the right to minimum wage for each work assignment performed by the worker;
- the right to amounts earned by the worker and to tips and other gratuities;
- the right to notice of removal from an operator's digital platform;
- the right to resolve digital platform work-related disputes in Ontario; and
- the right to be free from reprisal for exercising rights under the Act.
The legislation also sets out rules, processes and requirements with respect to record keeping, director liability, complaints and enforcement, collections, and offences and prosecutions.
2. Removing Certain Business Consultants and Information Technology Consultants from the Scope of the Employment Standards Act, 2000
Subject to certain criteria (including certain minimum compensation), Bill 88 will result in the exclusion of business consultants and information technology consultants from the employee entitlements of the ESA. This change will take effect on January 1, 2023.
Bill 88 defines "business consultant" as an individual who provides advice or services to a business or organization in respect of its performance, including advice or services in respect of the operations, profitability, management, structure, processes, finances, accounting, procurements, human resources, environmental impacts, marketing, risk management, compliance or strategy of the business or organization.
Bill 88 defines "information technology consultant" as an individual who provides advice or services to a business or organization in respect of its information technology systems, including advice about or services in respect of planning, designing, analyzing, documenting, configuring, developing, testing and installing the business or organization's information technology systems.
3. A New ESA Requirement for Employers to Enact a Policy on Electronic Monitoring
Bill 88 introduces a new requirement that employers with 25 or more employees have a written policy about electronic monitoring.
The policy must inform employees of whether they are being monitored and if they are being monitored, the circumstances and purposes for which any information obtained may be used.
Employers of over 25 employees will have until October 11, 2023 to put their policies in place. Any employer with 25 or more employees as of January 1st of any subsequent year will have until March 1st of that year to comply with the requirement.
4. Expanded Leave for Military Reservists Under the ESA
Bill 88 expands job-protected reservist leave under the ESA.
As of April 11, 2022, employees are eligible for time off to participate in Canadian Armed Forces military skills training after being employed for 3 consecutive months.
Previously, reservist leave was limited to deployments, and employees were required to be employed with their employer for at least 6 consecutive months before they would qualify for the job-protected leave.
5. Amendments to the Occupational Health and Safety Act
Bill 88 amends the Occupational Health and Safety Act by:
- requiring employers to provide naloxone kits when an employer becomes aware, or ought reasonably to be aware, that there may be a risk of a worker having an opioid overdose;
- raising the maximum fines for contraventions of the Occupational Health and Safety Act from $100,000 to $1,500,000 for directors and officers of a corporation, and from $100,000 to $500,000 for other individuals; and
- extending the limitation period for health and safety prosecutions from 1 year to 2 years.
The increased maximum fines and extended limitation period for prosecutions will take effect on July 1, 2022.
The new requirement for naloxone kits will come into force on a future date to be determined.
6. Reduce Delays for Certain Individuals Who Apply for Registration With Certain Regulated Professions in Ontario
Bill 88 enacts the new Fair Access to Regulation Professions and Compulsory Trades Act, 2006.
This legislation establishes the following timelines within which regulated professions must respond to applications for registration from domestic labour mobility applicants (individuals who apply for registration by a regulated profession in Ontario and who are currently registered with a body that regulates the same profession in another Canadian province or territory) unless an exemption is granted:
- applications for registration must be acknowledged within 10 days;
- registration decisions must be made within 30 days of the regulated profession receiving the application.
The new timelines will come into force on a future date to be determined.
Separate from Bill 88, the Ontario Government also recently announced the appointment of a portable benefits advisory panel to advise on designing and implementing a plan that provides workers with benefits, such as health, dental and vision care, even if they change jobs. As a first step, the panel will conduct research and consultations over the coming months on how benefits could reside with workers, not their employers. The advisory panel will submit a final report in summer 2023 with recommendations on how to best administer and implement a new benefits program.
In addition, on October 1, 2022, the general minimum wage rate will increase to $15.50 an hour. This increase is tied to the Ontario Consumer Price Index for 2022.
1 Government of Ontario, "Working for Workers Act, 2022".
2 See our previous bulletin on Bill 88: "Bill 88: Ontario Proposing More Employment Law Changes".
3 Government of Ontario, "Working for Workers Act, 2021".
4 See our previous bulletins on Bill 27: "An Update on Ontario's Bill 27: Key Amendments for Employers" and "Ontario Proposing Significant New Employment Law Changes in Bill 27").
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.