CHAUDHRI: Updates to employment law have real impact in workplaces

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The law of employment is like Canadian weather, always changing and sometimes unpredictable.

In Ontario, another set of changes to employment legislation in late 2024 called Bill 190 – Working for Workers Five Act, 2024 – has created immediate obligations for most Ontario employers.

Here’s what you need to know about how your workplace is impacted by the new law.

SICK DAYS

If an employee is off sick, the Employment Standards Act (ESA) no longer permits an employer to request a certificate from a “qualified health practitioner” to support the absence. The ESA guarantees employees three unpaid sick days each year. So, if an employer offers paid sick days, it too will be limited from requesting a sick note for the first three days of absence.

Employers will think twice about offering paid sick leave, as they will not be permitted to seek a medical note to support absences. Employers will also have to update current policies and contracts to ensure that their sick leave policies are compliant with the new law on sick days.

ESA FINES INCREASED TO $100,000

The new legislation has doubled the previous maximum fine of $50,000 for an individual convicted under the ESA.

Some employers are repeat offenders of the ESA. Doubling the fines will, theoretically, strengthen compliance and root out bad employers from continuing to do business.

RECOGNITION OF VIRTUAL WORKPLACE HARASSMENT

The Occupational Health and Safety Act now recognizes and protects workers from virtual or online workplace harassment.

With the increase in teleworking and remote workplaces, the recognition of virtual workplace harassment places a higher onus on employers to monitor online interactions of employees and update workplace standards with respect to working virtually. Virtual harassment will not be as easy to ascertain by employers and updating safety protocols and procedures to manage harassment complaints is key.

NEW RULES ON INTERVIEWING AND JOB POSTINGS

Bill 190 also announced that in the future, employers will be required to specify whether or not a publicly advertised job posting is for an existing vacancy. It will also require employers to provide prescribed information to any applicant interviewed for a publicly advertised job posting.

While we don’t know the details of these changes and when they will be rolled out, it’s clear that the ESA wants to introduce further protections to job applicants and to increase pay transparency at the outset of the employment relationship. While applicants currently have some legal protections they are difficult to pursue and are rarely brought before a court or tribunal.

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These changes may not be of great import individually, but combined they make one thing clear: Canadian employers cannot afford to be passive when it comes to updates in employment legislation. Denying an employee a right under the ESA can create serious financial liability both with the Ministry of Labour and in court.

Our courts have routinely sanctioned employers for failing to meet very technical requirements under the ESA and the trend seems as though the courts will continue to do so.

Now more than ever employers must be nimble, flexible and above all, educated, when it comes to employment law and the often technical, statutory rights of employees.

Have a workplace problem? Maybe I can help! Email me at sunira@worklylaw.com and your question may be featured in a future column.

The content of this article is general information only and is not legal advice.