After months of deliberation, committee work, and public consultations, the Ontario government has finally enacted Ontario's Fair Workplaces, Better Jobs Act, 2017 (the "Act"), better known as Bill 148.
This new piece of legislation modifies the Employment Standards Act, 2000 (the ESA), the Labour Relations Act, 1995 (the LRA) and the Occupational Health and Safety Act (the OHSA). Some of the changes are effective immediately, but most will come into force on January 1, 2018. We initially wrote about this legislation when it was first tabled in June 2017 in this article. Bill 148 has since changed through the legislative process and is now law. Here is what employers operating in Ontario need to know.
Changes to Employment Standards
The changes highlighted below will be of interest to all employers in Ontario. For unionized workplaces, employers will want to pay special attention to certain transition periods where a collective agreement is not immediately compliant with the legislative change.
Increased Minimum Wage (Effective January 1, 2018)
The minimum wage is increased to $14/hour as of January 1, 2018. It will increase again to $15/hour on January 1, 2019 and is subject to an annual inflation adjustment on October 1 of every year starting in 2019.
Equal Pay for Equal Work (Effective April 1, 2018)
Previously, equal pay for equal work prohibited wage gaps based on gender. The ESA now ensures equal treatment for workers regardless of their employment status (i.e., whether an employee is full-time, casual, temporary or seasonal). For example, part-time employees must now receive the same salary as their full-time coworkers. Employees will also be able to ascertain their employer's compliance by requesting a review of their salary if they believe they are not treated according to the ESA, without fear of reprisal.
Equal pay for equal work will apply to employees who perform "substantially the same" work, with "substantially the same" skill, effort and responsibility, under similar conditions. A last minute amendment to Bill 148 specifies that "substantially the same" does not mean "identical". Different rates of pay can only be justified by a seniority or merit system, or a system based on earnings by quantity or quality of production. Other factors may also be permissible provided they are not based on sex or employment status.
Significantly, the legislator toyed with the idea of allowing a seniority systems based on "accumulated hours worked", but this definition was ultimately removed from Bill 148.
As initially intended by Bill 148, temporary help agency employees will also be entitled to the same rate of pay as their permanent counterparts, as well as to notice of termination (or pay in lieu) of one week if their assignment is scheduled to last more than 3 months. As it stands, temporary help agency workers are not entitled to any notice of termination and they can be paid lesser wages than their permanent counterparts.
Employers will need to review their existing salary grids for compliance and turn their minds to their compensation schemes more broadly. They may also want to introduce procedures for dealing with the new employee rights to wage enquiries.
Scheduling Rights (Effective January 1, 2019)
While it may be good practice, the ESA currently does not require employers to provide advance notice of shift changes or cancellations. This will soon change for Ontario employers.
Schedule or Location Change
As of January 1, 2019, employees will be entitled to request schedule or location change after 3 months of service. Employers are not required to accept the amendment aims to protect employees making such requests against reprisals and to allow them to obtain information. Employers receiving such requests must discuss them with the employee and provide a written decision within a reasonable time period (including reasons if denying the request). There are no limits as to how many requests employees can make.
Right to Refuse Work on Short Notice
Employees will have the right to refuse shift or "on call" work presented to them with less than 96 hours of notice. A few narrow exceptions were introduced in Bill 148, notably if the request is meant to deal with an emergency (restrictively defined), reduce a threat to public safety, or deliver essential public services.
Minimum Cancellation Pay
Employees with shifts cancelled within less than 48 hours of their commencement or employees reporting for duty only to work less than 3 hours will be entitled to 3 hours of pay at regular rate (or their actual worked rate for the time worked if higher, plus their regular rate for the balance of the 3 hours).
Corresponding changes were made to employers' record keeping obligations. Employers will want to review their practices and policies when it comes to scheduling and potentially change their record keeping habits to keep up with the new requirements. They may also want to introduce procedures for dealing with the new employee rights to request schedule or location changes.
Leaves of Absence (Effective 2017-2018)
New leaves were introduced while others were expanded. Employers will therefore need to review their current policies to ensure they comply with these new entitlements. When requesting information from employees in connection with their absence, employers should pay special attention to the definition of “qualified health practitioner” which now varies across the different leaves.
Family Medical Leave (Effective January 1, 2018)
The Leave is increased from 8 weeks to 28 weeks in a 52 weeks period.
Critical Illness Leave (Effective December 3, 2017)
The "Critically Ill Child Care Leave" proposed in prior versions of Bill 148 was expanded to include a broad list of adult family members and children who are critically ill. Employees will now be entitled to a leave up to 37 weeks to provide care or support to a critically ill minor child and up to 17 weeks in the case of a critically ill adult. Bill 148 allows for extensions in some cases and specifies how employers may ascertain entitlement to such leave, notably through a "qualified health practitioner".
Child Death Leave (Effective January 1, 2018)
Employees who have been employed for 6 months or more are entitled to a leave without pay of 104 weeks in the case of child's death.
Crime Related Child Disappearance Leave (Effective January 1, 2018)
The leave for a crime related child disappearance is the same as the leave for a child's death.
Paid Personal Emergency Leave (Effective January 1, 2018)
All employers (as opposed to just those with 50 or more employees) will be required to grant 10 days of personal emergency leave to employees who have been employed for a week or longer. Significantly, 2 of these personal emergency days must now be paid. Employers will no longer be allowed to request sick notes from qualified health practitioners for these ten days of leave, but can still require employees to provide "reasonable evidence". Employers will want to review their existing paid leave entitlements in light of these changes and to reconsider how they ascertain their employees' rights to sick leave given those restrictions.
Family Medical Leave (Effective January 1, 2018)
An employee is now entitled to a leave of absence without pay of up to 28 weeks (rather than the 27 weeks initially contemplated in the Bill) to provide care or support to a family member.
Domestic or Sexual Violence Leave (Effective January 1, 2018)
This new leave is a result of further amendments to Bill 148 since its introduction. An employee who has been employed for at least 13 consecutive weeks is entitled to a leave of absence of up to 10 days or up to 15 weeks if the employee or child of the employee experiences domestic or sexual violence, or the threat of domestic or sexual violence. However, the leave must be used for predetermined purposes, such as to seek medical attention or obtain services from a victim services organization. The first 5 days of the leave are paid.
Again, employers will need to review their policies and procedures, notably to ensure their compliance with confidentiality requirements introduced with respect of this leave.
Increased Paid Vacation (Effective January 1, 2018)
Ontario joins the ranks of the most generous Canadian jurisdictions when it comes to vacation entitlements: employees will now be entitled to at least 3 weeks of paid vacation after 5 years of service. Transition provisions will be important for those employees who will soon reach 5 years of service.
Employee Misclassification as Contractors (Effective immediately)
Workers classified as independent contractors are excluded from the application of the ESA. Bill 148 prevents employers from treating a person who is their employee as if they were not (by classifying them as independent contractors). The onus of proof has been reversed: employers will have to prove that an individual is not an employee. Employers who fail to do so could be faced with prosecution, public disclosure of a conviction, fines and other liabilities for misclassification. Employers may want to revisit the circumstances in which they retain independent contractors, and assess their risks more carefully in that regard.
Related Employers (Effective January 1, 2018)
Previously, a party alleging that two businesses were in reality the same employer had to establish that the intent or effect of their arrangement was to defeat the ESA. This requirement is now removed by the Act, arguably making it easier for an employee to claim remedies against multiple entities.
Changes to the Occupational Health and Safety Act
No compulsory high heels (Effective immediately)
The Occupational Health and Safety Act is amended to prohibit employers from requiring workers to wear footwear with elevated heels. High heeled footwear can only be made mandatory for safety reasons or if the worker is a performer in the entertainment and advertising industry.
Changes to the Labour Relations Act (All Changes Effective January 1, 2018)
Few amendments were made to Bill 148 during the legislative process. Of note, the broad ability of the Board to review the structure of a bargaining unit upon application from an employer or union was removed. It now applies only in the context of a new certification. Amendments also provide that employers may request educational support from the government in the practice of labour relations and collective bargaining, a change clearly meant to assist newly certified employers.
Access to Employee Lists and Contact Information
A game changer for organizing drives, unions will now be able to file an application with the Ontario Labour Relations Board (the OLRB) to have access to an employee list. If the OLRB is satisfied that the union has garnered the support of 20 per cent of employees, access to the employee lists will be granted. This list must include the name of each employee in the proposed bargaining unit, phone number and personal email if it was provided to the employer. Amendments to Bill 148 now also allow the Board the discretion to force the disclosure of other information, such as the employee's job title, business address, and other means of contact. Both the union and the employer have certain responsibilities to ensure this personal information is protected.
Facilitating Automatic Certification
Where the Board is satisfied that an employer has contravened the Labour Relations Act and that, as a result, the union was unable to obtain 40% support, or if the true wishes of the employees were likely not reflected in a representation vote, the Board is now required to automatically certify the union as the bargaining agent.
Other significant changes to the LRA
- Return to Card-Based Union Certification Model (certification will now be card-based in the temporary help agency industry, the building services sector, and home care and community services industry).
- Secret Ballot Voting (votes outside the workplace will now be permissible, including by telephone and electronically, with the OLRB empowered to give directions regarding the voting process).
- Enhanced Protection Regarding Lawful Strikes/Lockouts and Just Cause (the 6 month limitation for a right to return to work after a legal strike or lockout is removed).
- Employers will be required to prove just cause when disciplining or firing an employee from the date employees are in the position of a lawful strike/lockout until a first collective agreement is reached, as well as during the period between certification and conclusion of a first contract.