In our previous blog, we summarize a few of the changes proposed in the Working for Workers Act, 2022 (“Bill 88”). As of April 11, 2022, Bill 88 has been enacted and includes a variety of measures that will impact Ontario employees and employers. The passing of Bill 88 includes enacting the Digital Platform Workers’ Rights Act, 2022, amending the Ontario Employment Standards Act, 2000 (“ESA”), and Occupational Health and Safety Act (“OHSA”).
In this blog, we at Sultan Lawyers discuss everything you want to know about Bill 88 and employment legislation updates in Ontario.
Digital Platform Workers’ Rights Act, 2022
The Digital Platform Workers’ Rights Act (“DPWR”) is an entirely new piece of legislation introduced through Bill 88. The purpose of the DPWR is to implement rights for workers who perform digital platform work.
The DPWR defines Digital Platform Work as, “the provision of for payment rideshare, delivery, courier or other prescribed services by workers who are offered work assignments by an operator through the use of a digital platform”. Further, a Digital Platform is defined as “an online platform that allows workers to choose to accept or decline digital platform work”. Some examples of Digital Platform Work could be the following:
● Uber driving
● Doordash food delivery
● TaskRabbit work
The Digital Platform Workers’ Rights Act will provide the following entitlements to those who perform digital platform work that was previously reserved for those who fell within the definition of “employee” under the Employment Standards Act.
The new DPWR includes the following minimum standards for Digital Platform work, the standards apply to the workers as well as the companies that utilize Digital Platform Work (“operators”).
The right to information
Workers must be provided with a description of how payments will be calculated and distributed, whether there are factors in determining what work assignments are offered if there is a performance rating system and if tips are collected. The operator must also provide notice of any changes to that information.
The right to recurring pay periods/paydays
Workers will now receive a more consistent pay schedule rather than a pay-as-you-go system.
The right to minimum wage
Digital Platform Workers must be provided with the ESA minimum wage (exclusive of any tips earned).
The right to amounts earned by the worker and to tips and other gratuities
Operators cannot withhold any tips earned or make a deduction from a worker’s tips (except in limited circumstances).
The right to notice of removal from an operator’s digital platform
If a worker is removed from the digital platform for longer than 24 hours, they must be given two (2) weeks’ written notice. The worker must also be provided with a written explanation of their removal.
The right to resolve digital platform work-related disputes in Ontario
Digital Platform Workers are entitled to resolve disputes in Ontario rather than being limited to the jurisdiction where the operator is headquartered.
The right to be free from reprisal
Operators cannot penalize a worker if they ask about their rights under the Digital Workers’ Platform Rights Act or seek to enforce those rights.
AMENDMENT TO THE OCCUPATIONAL HEALTH AND SAFETY ACT
Bill 88 has also introduced the following amendments to the OHSA.
The first new provision requires employers to provide naloxone kits if they become aware (or ought to be aware) that there may be a risk of a potential opioid overdose in the workplace.
Naloxone is a medication that can be used to reverse the effects of an opioid overdose. Opioid-related overdoses and deaths have increased, particularly in the construction industry. The Occupational Health and Safety Act amendment aims to further maintain a safe environment by ensuring that workplaces are equipped with emergency resources to avoid potential deadly overdoses.
At this time, there is no specified date for this amendment to come into effect. We will continue to monitor for updates.
Occupational Health and Safety Act Violations
The OHSA imposes fines for corporations and individuals who violate the Act. Bill 88 has increased the maximum fines for corporations from $100,000 to $1,500,000 and from $100,000 to $500,000 for individuals. The Bill has also increased the limitation period for prosecuting violations from one (1) year to two (2) years.
Finally, the purpose of the Occupational Health and Safety Act’s amendment is to specifically include the following list of aggravating factors to consider when determining a penalty for OHSA violations:
● The offence resulted in death, severe injury, or illness of one or more workers;
● The offence was committed recklessly;
● The offence was related to a disregarded order from an inspector;
● The offence was committed by someone with prior conviction or record of non-compliance;
● Lack of remorse;
● Level of moral responsibility;
● Financial motive;
● Attempting to conceal the offence after the fact; and/or
● Failing to cooperate with authorities.
The amendments related to Occupational Health and Safety Act violations will come into effect on July 1, 2022.
CHANGES TO THE EMPLOYMENT STANDARDS ACT
In addition to the above changes, Bill 88 has introduced amendments and revisions to the Employment Standards Act. The ESA applies to most employers and employees in Ontario, with some exceptions.
Electronic Monitoring Policy
The Employment Standard Act’s amendment is to introduce the requirement for Electronic Monitoring Policies in the workplace. The new policy mandate aims to protect workers’ privacy rights and increase transparency from employers.
The amendment requires employers with 25 or more employees, to introduce a written policy with the following information:
● Whether the employer electronically monitors their employees;
● A description of how and in what situations the employer electronically monitors employees;
● How the information collected through electronic monitoring is used; and
● The date the policy was created and the dates of any subsequent changes.
Applicable employers must introduce an Electronic Monitoring Policy before October 11, 2022.
Business and IT Consultants
As of January 1, 2023, the Employment Standards Act will include new definitions for “business consultants” and “information technology consultants”. The ESA will not apply to workers who fall under those definitions if they meet the specific requirements outlined in the legislation.
The definitions aim to clarify the employment relationship between Business and IT consultants and the businesses that they provide services. Individuals who provide business and IT consulting services are encouraged to review the criteria to determine whether the Employment Standards Act applies to their work.
Previously, the ESA included the right to an unpaid leave of absence for reservists (who had been employed for 6 months prior) if they were not performing employment duties because they had been deployed (either inside Canada or outside Canada).
As of April 11, 2022, reservist leave eligibility is available to reservists who are not performing employment duties because they are participating in military skills training. Additionally, reservists are only required to be employed for 3 months (rather than 6 months) to qualify for reservist leave.
CONTACT SULTAN LAWYERS FOR MORE INFORMATION
If an employee or employer is seeking advice navigating new employment legislation in Ontario, we strongly recommend consulting legal counsel. We encourage you to contact Toronto employment lawyers, Sultan Lawyers for a free call back or flat-rate consultation. Please contact us by telephone at 416-214-5111 or here.
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