Pay equity
Disconnecting from work and prohibition on non-compete agreements
Digital platform workers' rights and electronic monitoring policies
Recruitment, dismissals and employee mental health
Covid-19-related issues
Other upcoming trends
Comment
In 2021, the pandemic transformed the world of work in many ways. Businesses and organisations were required to adapt and provide creative and flexible responses to the dynamic changes to the workplace. Whether related to virtual work, health and safety, or return-to-work programmes, the employment relationship has changed – and will continue to change. This article provides an overview of the important trends to look out for in 2022.
Canada's federal Pay Equity Act and its supporting regulations came into force on 31 August 2021. This legislation sets out a proactive pay equity scheme designed to ensure that, on average, women and men in federally regulated workplaces receive equal pay for work of equal value. Ensuring pay equity in compliance with the legislation is a data-driven exercise requiring employers to thoroughly investigate the types of jobs being done, analyse access to compensation and calculate wage discrepancies using equations and statistics typically represented via regression analysis. Pay equity is not a "one-and-done" process, as employers are required to maintain their information on an ongoing basis. In particular, federally regulated employers are required to conduct the entire pay equity process every five years, as well as submit annual statements to the pay equity commissioner.
As companies continue to integrate environmental, social and governance (ESG) initiatives into their business strategies, pay equity will be a recurring theme in 2022 as it directly relates to corporate accountability, transparency and sustainability.
Disconnecting from work and prohibition on non-compete agreements
On 2 December 2021, the Ontario government passed Bill 27, the Working for Workers Act 2021, which amended the Employment Standards Act 2000 to include a requirement for employers with 25 or more employees to create a written "disconnecting from work" policy by 2 June 2022. In preparing these policies, employers will need to consider their approach to disconnecting, and the scope of disconnection that will be required by new policies to ensure employees maintain time to be free from the performance of work. The federal government has also began working on a plan to implement similar disconnecting from work policies for federally regulated employers. The federal minister of labour received the Right to Disconnect Advisory Committee's final recommendation report on 10 February 2022 and will continue to develop the federal plan for disconnecting from work policies.
Bill 27 also made Ontario the first province in Canada, and one of the few jurisdictions in North America, to legislatively ban non-compete agreements in employment contracts, with some exceptions. This prohibition will cause non-compete agreements/provisions entered into on, or after, 25 October 2021 to be void or unenforceable.
Disconnecting from work policies will continue to be an important topic in 2022 as businesses and organisations plan to implement the hybrid workplace model. It will be interesting to see whether the ban on non-competes will cause more businesses to set up operations in Ontario and whether other jurisdictions will follow suit with similar prohibitions.
Digital platform workers' rights and electronic monitoring policies
On 11 April 2022, the Ontario government passed Bill 88, the Working for Workers Act 2022. The Bill introduces a variety of new workplace requirements and amendments, including the Digital Platform Workers Rights Act, 2022, which establishes minimum employment standards entitlements for digital platform workers (eg, food delivery persons, ride-sharing drivers), such as minimum wage, recurring pay periods and pay days.
Bill 88 also requires employers with 25 or more employees to create a written electronic monitoring policy to set out how company technology, such as computers or mobile phones, are being tracked by the employer. Employers will have 6 months from 11 April 2022 to develop their electronic monitoring policies.
As further government guidance on Bill 88 becomes available, the impact of these changes will be seen on the employment relationship and the measures that employers will need to take to comply with these new workplace requirements.
Recruitment, dismissals and employee mental health
2021 saw decreases in the volume of wrongful dismissal litigation, and a growing emphasis on employee retention and recruitment. Covid-19 also caused many employers to permanently adjust work arrangements and transform their policies and practices. This included adjusting compensation policies, implementing new bonus structures and providing employees flexibility to work from anywhere. These adjustments were aimed towards improving work environments, addressing diversity, inclusion and equity, as well as prioritising the well-being of employees.
It is anticipated that there will be continued movement in this direction in 2022 to further strengthen the working relationship. As ESG initiatives gain more momentum, talent retention, diversity and inclusion, and mental health will remain priorities in the legal landscape.
In response to the pandemic, many businesses needed to make significant changes to adapt, and continue to adapt, to changes in the employment relationship, considering how fluid, dynamic and complex the modern workplace has become. For many employers, the "new normal" entails a state of constant change and adaptation. For example, what began as preparation for remote working arrangements is now shifting to a hybrid-workplace model, as businesses and organisations contemplate what a return to work will look like now that employees have experienced the flexibilities of the work-from-home model.
Considerations that employers will need to plan for in 2022 include employees' anxieties regarding health and safety in terms of a return to office arrangement. Businesses and employers will need to consider equity and discrimination issues that may arise where employees who prefer to work from home may be perceived to be less committed than their in-office counterparts. Employers will also need to assess how their physical offices will change – including daily attendance and whether they will adopt infrastructures such as hotdesking and hotelling systems. These decisions will allow businesses to make the best use of their spaces.
On 7 April 2022, the federal government introduced Budget 2022, which includes several investments to enhance worker protections. The Budget reiterated the government's plans to amend the Canada Labour Code to provide federally regulated workers with 10 days of paid medical leave, as well as up to eight weeks of bereavement leave when an employee experiences the death or stillbirth of a child. The first three days of this leave will be paid for employees who have completed three months of continuous employment.
The Budget also sets out plans to improve access to the skilled trades for underrepresented groups of people, a review of the Employment Equity Act, and amendments to the Employment Insurance Act to support workers who are facing unemployment.
Employers need to stay informed about these amendments to ensure they remain compliant. As more information on Budget 2022 becomes available, employers should review their workplace policies and agreements in order to respond accordingly.
In Ontario, the temporary relief measures from the termination and severance provisions of the Employment Standards Act 2000 (ESA), in the form of deemed infectious disease emergency leaves (deemed IDELs), are set to expire on 30 July 2022. Therefore, starting on 31 July 2022, an employee who has had their hours of work reduced or stopped and has been on a deemed IDEL as a result will have a right to be reinstated to their previous position, if it still exists, or a comparable position. In light of the ESA rules on layoffs and constructive dismissals, employees who cannot be reinstated will be considered to be at the start of a temporary layoff under the ESA. With this in mind, employers will have to consider their options carefully to navigate the resulting litigation risks.
Paid IDEL days available under the ESA for reasons related to covid-19 will also be expiring on 31 July 2022. Employers will similarly need to consider how they will accommodate employees who need to take time off due to covid-19 reasons after this date.
As the rapidly changing landscape of Canadian employment law continues to turn in 2022, it is extremely important to keep track of current trends and how they will impact the legal landscape. Staying informed will assist businesses and organizations navigate these changes and respond effectively.
For further information on this topic please contact Lisa Cabel or Qasid Iqbal at KPMG Law by telephone (+1 416 777 8000) or email ([email protected] or [email protected]). The KPMG Law website can be accessed at www.kpmg.com.