On December 2, 2021, the Ontario government’s Bill 27, Working for Workers Act, 2021 to promote healthy work-life balance, the right to disconnect and to further enable competitiveness by banning unfair non-compete agreements that are used to restrict work opportunities, among other employment law-related changes, received royal assent with some amendments.
Before Bill 27 was ordered for third reading, the Standing Committee on Social Policy applied amendments that were approved to some of the following provisions of the Bill:
- Right to disconnect: Employers will have to comply with the provisions requiring employers with 25 or more employees by January 1, 2021, to have a written policy about employees disconnecting from their job at the end of the workday six months after the Bill receives royal assent. Therefore, obligated employers have until June 2, 2022, to meet the new requirement to have a written policy in place. This provision did not receive any amendments. The law does not outline what should be in the policy but this workplace policy could include, for example, expectations about response time for emails and encouraging employees to turn on out-of-office notifications when they aren’t working.
- Ban on non-compete agreements: The banning of non-compete agreements that prevent people from exploring other work opportunities will also become law when the Bill receives royal assent but will be backdated to October 25, 2021 (the day that Bill 27 was introduced.) These types of contracts often restrict employees from taking new jobs with another business in the same field after they leave a company. This change will ban this restriction to help workers in Ontario advance their careers and earn more money. This will also give the province a competitive advantage in attracting global talent. Employers would still be able to protect their intellectual property through narrower clauses. However, there are exceptions. In addition to permitting non-compete agreements where certain sale of business requirements are met, the Committee added a second exception to the Bill 27 prohibition against non-compete agreements; it will not be contrary to employment standards law for employers to have non-compete agreements with executives. “Executives” have been defined as any person who holds the office of chief executive officer, president, chief administrative officer, chief operating officer, chief financial officer, chief information officer, chief legal officer, chief human resources officer or chief corporate development officer, or who holds any other chief executive position. This prohibition does not apply to non-compete agreements entered into before October 25, 2021.
- Barrier to the employment of foreign workers: The changes regarding the Employment Protection for Foreign Nationals Act, 2009 to help remove barriers, such as Canadian experience requirements, for internationally trained individuals to get licenced in a regulated profession and get access to jobs that match their qualifications and skills comes into force on the day the Working for Workers Act, 2021 receives royal assent. The Committee added a prohibition against recruiters and employers, in connection with the recruitment or employment of a foreign national, who knowingly use the services of a recruiter who has charged a fee to a foreign national. This complements section 7(1) of the Employment Protection for Foreign Nationals Act, 2009, which prohibits a recruiter from directly or indirectly charging a foreign national for any service, good or benefit provided to the foreign national.
- Temporary help agencies: The changes that require recruiters and temporary help agencies to have a licence to operate in the province to help protect vulnerable employees from being exploited will come into force on a day to be named by proclamation of the Lieutenant Governor. The Committee added recruiters to the list of individuals that cannot engage or use the services of a recruiter unless the recruiter holds a licence for that purpose. Among other changes, additional requirements have been added to ensure that applicants are aware that recruiters cannot charge a fee for any service, good or benefit provided to the foreign national. The Committee also provided the Director of Employment Standards with the ability to refuse to issue or renew the licence of an applicant who has charged a fee to a foreign national or engaged or used the services of any person, other than an employee of the applicant, that has ever charged a fee or collected a fee charged to a foreign national.
- Access to washrooms: The occupational health and safety changes that require business owners to allow delivery workers to use a company’s washroom if they are delivering or picking up items come into force on royal assent. This provision did not receive any amendments.
- WSIB and WSIA changes: The Workplace Safety and Insurance Act, 1997 and WSIB changes allow surpluses in the Workplace Safety and Insurance Board’s Insurance Fund to be distributed over certain levels to businesses, helping them cope with the impacts of COVID-19. The Bill also enables the Workplace Safety and Insurance Board to work with entities, like the Canada Revenue Agency, to streamline remittances for businesses, enabling a way to give them an efficient one-stop-shop for submitting premiums and payroll deductions. These changes come into force on a day to be named by proclamation of the Lieutenant Governor. This section did not receive amendments.
- Agricultural sector information gathering: This allows the Ministry of Agriculture, Food and Rural Affairs to collect information related to the agri-food workforce to ensure the government can enhance the coordination of services such as vaccination and testing and respond to issues that may arise. The Committee narrowed the purposes for the collection and use of personal information as it relates to the agricultural sector. These purposes include: (i) food safety; (ii) animal health or human health; and (iii) economic, environmental or social interests.
Many of the enacted changes were informed by the recommendations made by the experts of the Ontario Workforce Recovery Advisory Committee, based on their consultations with workers, employers, and unions.
Employers will need to start reviewing the law to see how the provisions of Bill 27 impact their HR and payroll practices and comply with the due dates, including the need to start preparing a policy on employees rights to disconnect from work (if applicable) and the review of non-compete clauses in sample employment contracts or restrictive covenants or settlement agreements and releases.