On March 13, 2023, the Ontario government announced proposed changes to the Employment Standards Act, 2000 (ESA) that, in mass termination situations, would afford employees who work solely from home with the same notice entitlements as those who work in-office.
Pursuant to the ESA, employees are entitled to potentially enhanced notice of termination (or pay in lieu thereof) in the context of a mass or group termination. A mass termination is generally triggered if the employment of 50 or more employees at an employer’s “establishment” is terminated within a four-week period. If there is a mass termination, employees may be entitled to notice of eight to 16 weeks or pay in lieu, depending on the number of employees impacted.
Currently, “establishment” is defined as a location at which the employer carries on business. If the employer carries on business at more than one location, separate locations constitute one establishment if:
The separate locations are located within the same municipality, or
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
If passed, the proposed changes would broaden the ESA’s definition of establishment to include employees’ home offices. While the legislation is not yet tabled, this change may require that remote workers be included when calculating the number of impacted employees. Based on the information provided to date, we know the government intends to ensure that remote workers are eligible to receive the same potentially enhanced notice in the context of a mass termination.
The government is also proposing regulatory changes that would require employers to provide new hires with information in writing about their position, such as pay, work location and hours of work, and the date by which that information needs to be provided.