Ontario’s Working for Workers Five Act receives royal assent

On October 28, Bill 190, Working for Workers Five Act, 2024 received royal assent. As with previous “Working for Workers” legislation, Bill 190 amends several workplace law statutes in an omnibus format.

The statutes amended by Bill 190 are:

• Employment Standards Act, 2000 (ESA)
• Occupational Health and Safety Act (OHSA)
• Workplace Safety and Insurance Act, 1997
• Building Opportunities in the Skilled Trades Act, 2021
• Fair Access to Regulated Professions and Compulsory Trades Act, 2006
• Ontario Immigration Act, 2015

Many of the changes to the statutes above are technical or focused on narrow applications. Only a few generally apply to all employers in the province – summarized in this update.

New ESA provisions

The following changes to the ESA were effective as of October 28, 2024:

• Prohibition on sick notes for ESA sick leave. Employers are prohibited from requiring an employee to provide a certificate from a qualified health care practitioner (i.e. a sick note) as evidence of entitlement to ESA “sick leave.” Under section 50 of the ESA, an employee who has been employed for at least two consecutive weeks is entitled to three days of unpaid sick leave per calendar year in instances of personal illness, injury or medical emergency. Employers will not be permitted to request a sick note as evidence of entitlement to these three days of sick leave. However, an employer will remain entitled to request other evidence of entitlement (e.g. an attestation that the employee was absent due to illness), and an employer will not be prevented by the ESA from requiring sick notes where employees have used up their three days of sick leave in a calendar year (unless there are restrictions on employer requests for sick notes under an applicable policy, contract or collective agreement).
• Increased fines. The maximum fine for individuals convicted of an offence for contravening the ESA or for failing to comply with an order, direction or other requirement under the ESA increased from $50,000 to $100,000.

The following changes to the ESA will be effective on a date to be named by the government:

• Confirming vacancy in job postings. Publicly advertised job postings must include a statement disclosing whether the posting is for an existing vacancy or not, along with any additional information required by regulation. Exceptions to this requirement may be defined in regulation.
• Following up with interviewees. If an employer interviews an applicant for a publicly advertised job posting, the employer must, within a period to be defined in regulation, provide the applicant with certain information, which will be defined in regulation. This information must be retained for three years from the date it is provided to the applicant.

It is worth noting these two new recruitment rules are in addition to three proposed in the Working for Workers Four Act, 2024, which received royal assent on March 21, 2024. Those earlier three rules relate to pay transparency in job postings, prohibiting “Canadian experience” requirements in job postings or application forms, and disclosing use of artificial intelligence in the recruiting process. For more information see our update Bill 149, Working for Workers Four Act, 2023 proposes further changes to Ontario workplace laws.

All five new recruitment rules will come into force upon proclamation by the government. On September 20, 2024, the Ontario government completed public consultations regarding future regulations relating to these new recruitment rules. We expect these new rules will be proclaimed into force once the corresponding regulations are completed

New OHSA provisions

The following changes to the OHSA were effective as of October 28, 2024:

• Updating the definition of workplace harassment. The definitions of “workplace harassment” and “workplace sexual harassment” were revised to expressly apply to virtual interactions through information and communications technology.
• Electronic posting. Posting requirements under the OHSA may now be satisfied by providing workers with access to electronic copies, so long as workers are directed where to access that information and the information is in a format that can readily be accessed by workers in the workplace.
• Remote joint health and safety committee meetings. The requirement that joint health and safety committees meet at the workplace was removed, permitting such meetings to take place remotely.
• OHSA application to telework. A clarification was added to the OHSA indicating that the legislation applies to “telework” performed “in or about a private residence or the lands and appurtenances used in connection therewith.”

The following change to the OHSA will come into effect on a date to be named by proclamation:

• Washroom facilities. Employers and constructors under the OHSA will be required to ensure washroom facilities provided for workers are maintained in a sanitary condition, and that records of cleaning are maintained and available.