The details of the Ontario government’s eagerly anticipated amendments to the Employment Standards Act, 20001 (the ESA) and the Occupational Health and Safety Act2 (the OHSA), which we previously reported in our March 14, 2023 insight, were particularized on March 20, 2023, through the tabling of Bill 79, the Working for Workers Act, 2023.
As previously reported, on March 13, 2023, the Ontario government announced its intention to amend the mass termination rules in order to ensure that remote employees are entitled to the same enhanced notice as their in-office counterparts. Currently, the definition of “establishment” under the ESA is based on the physical location at which an employer carries on business, and fails to clearly capture the home offices of remote employees in the province.
Through Bill 79, the Ontario government proposes to modify the application of the definition of “establishment” by introducing an explanatory note that explicitly includes an employee’s private residence in the determination of whether the mass termination threshold has been met, if the employee: (a) performs work in the private residence; and (b) does not perform work at any other location where the employer carries on business. Notably, this amendment, as drafted, will only apply to employees who work remotely all the time. For employees engaging in a hybrid work arrangement (both at home and in an office), the “in-office” location in the arrangement will be determinative for the purposes of determining whether the mass termination rules apply.
In addition, under the proposed amendments employers will be required to provide copies of the ESA Form 1 (the document that employers are required to provide to the Ministry of Labour which sets out certain specified information relating to the mass termination), to each employee affected by the mass termination. This obligation is in addition to the employer’s existing obligation to post a copy of the Form 1 in a conspicuous place in the workplace.
While Bill 79 has provided some clarity on how the Ontario government intends to expand the mass termination rules to remote employees, there are still unanswered questions as to how these amendments will apply in circumstances where an employer carries on business at more than one location. The draft of Bill 79 introduced at the First Reading stage does not propose any amendment to the definition of “establishment” outlined in section 1(1) of the ESA. As the ESA currently stands, it states that separate locations will constitute one establishment if: (a) the separate locations are located within the same municipality; or (b) one or more employees at a location have seniority rights that extend to the other location under a written employment contract, whereby the employee or employees may displace another employee of the same employer. By implication, if a fully remote employee does not work in any of the municipalities in which an employer carries on business, it remains at least arguable that in circumstances where an employer carries on business in multiple locations, the mass termination rules may not apply to that remote employee. It remains to be seen whether or not the Ontario government will address this gap in future drafts of Bill 79.
If Bill 79 is passed as currently drafted, the proposed amendments to the mass termination rules will come into force on the later of July 1, 2023, or the date on which Bill 79 receives Royal Assent.
In addition to the amendments to the ESA’s mass termination rules, Bill 79 proposes other notable amendments of interest to employers, including the following:
- Expansion of the reasons for which an employee can take reservist leave, to include circumstances where an employee is “in treatment, recovery or rehabilitation in respect of a physical or mental illness, injury or medical emergency” that results from the employee’s participation in prescribed operations or activities;
- Increase of the maximum fine which can be imposed on a corporation under the OHSA from CA$1.5 million to CA$2 million; and
- A broadening of the Ontario government’s regulation making power such that it may make regulations prescribing information that must be provided to an employee or a prospective employee, in writing, and when that information must be provided. In the Ontario government’s original March 13, 2023 announcement, it was suggested that such prescribed information could include information about an employee’s pay, work location and hours of work, and the date by which that information would need to be provided to employees. No draft regulations have been published yet, but our Dentons Canada Employment and Labour group will monitor this potentially important amendment closely.