No one can say that workplaces in the past few years have not been without their challenges. We are now seeing organizations shifting to more hybrid work options with employees working from home and the office on a variety of different schedules. We’ve also seen organizations shifting to hoteling options, which can be good, particularly if you’ve downsized your space from when the pandemic started. Hotelling, however, is certainly not a fan favourite when it comes to employees.
The provincial government more recently implemented some changes with the “Working for Workers Act, 2021” (Bill 27). We wanted to highlight some of the key points as deadlines for implementation are coming up.
The Right to Disconnect Policy
The Bill applies to workplaces with 25 employees. The 25 employees must include all Ontario locations. The deadline for implementation of the policy is June 2, 2022.
Unfortunately, guidance from the government on specifics continues to be a bit vague. Employers must have a policy regarding disconnecting from work by the deadline. The policy must also be provided to new employees within 30 days of being hired.
The Employment Standards Act (ESA) defines disconnecting from work as “not engaging in work-related communications, including emails, telephone calls, video calls or sending or reviewing other messages, so as to be free from the performance of work.” There are no guidelines from the government as to the content of the policy. That needs to be determined by the employer. The Bill, however, is somewhat contradictory as the ESA does not specifically state that the employee has a right to disconnect. There also appears to be little clarity on whether or not there are any differences between exempt and non-exempt employees (some parts of the ESA do not apply to exempt employees).
So, what should you do? As a first step, you should consider what your disconnecting from work policy could look like. What types of work and employees do you have? Is there shift work? Are you dealing with other time zones? Do you have exempt and non-exempt employees? Is the workplace culture where there is a lot of after-hours communication? How is overtime currently managed? And, most importantly, how do you want to see this moving forward in your organization?
With little government guidance and several areas of uncertainty, there will no doubt be challenges to policies moving forward. We would be happy to have a conversation with you about what might work best in your organization.
Non-Competition Agreements
Over the years, we have discussed the problems with the enforcement of non-competition agreements with many of our clients. Bill 27 now bans the use of non-competition clauses in employment agreements. The Bill states that this ban is applicable for employment agreements that came into force after October 25, 2021. Certain exceptions can be made for senior executive and C-suite level positions. If you do require a non-competition clause for a senior-level position, it should be drafted by an employment lawyer to ensure that it is binding with respect to this new legislation.
Electronic Monitoring Policy
Another Bill (88) under this Act which came into law on April 11, 2022, requires employers to have an Electronic Monitoring Policy. This, again, applies to employers with 25 or more employees. The Act does not restrict the employer with respect to electronically monitoring employees but does require that they create a policy that outlines the description of the monitoring. Employers have until October 12, 2022, to implement this policy.
OHSA (Future) Amendment
Bill 88 will require that employers provide naloxone kits, where they become aware, or ought reasonably to be aware that an employee may have an opioid overdose at the workplace. Guidelines around acquisition, maintenance and training will be provided once the amendment comes into force.
In addition, OHSA fines will be substantially increased (up to $1.5M for directors and officers, and $500,000 for other individuals) where the employer does not maintain a healthy and safe workplace that could lead to severe injury or death of an employee. These changes will come into force on July 1, 2022.
Specific details on these new amendments can be found on the Government of Ontario website. Please reach out to us for more information on these changes via email at info@brownconsulting.ca or 416-694-6101.
