ONTARIO’S PRO-WORKER LEGISLATION

BY FLORA VINEBERG

ONTARIO’S NEW PRO-WORKER LABOUR LEGISLATION

Employers will need to roll out disconnecting from work policies by June 2, 2022.

As a result of the COVID-19 pandemic, Ontario’s labour market experienced significant disruptions and a permanently shifted work landscape. Employers grapple with redefined work locations, rapidly changing public health standards, and the need for economic revitalization.

To aid the province’s recovery scheme, the Ontario government introduced Bill 27: the Working for Workers Act, on October 25, 2021. On November 30, Bill 27 passed third reading and on December 2 it received royal assent and officially became law. It amends numerous pieces of legislation including the Employment Standards Act, 2000 (ESA), in efforts to improve protection and support for Ontario’s workers while maintaining a competitive advantage in attracting leading global talent.

Upon passing the Act, Ontario announced, “We have introduced measures to make it easier to spend time with family and loved ones, requiring most workplaces have a right to disconnect policy,” which offers insight into this policy’s purpose.

DISCONNECTING FROM WORK POLICY

Significantly, Bill 27 amends the ESA by introducing a requirement for employers with 25 or more employees as of January 1 of any year to ensure, prior to March 1 of that year, that they institute a written policy for all employees with respect to disconnecting from work.

Disconnecting from work is defined as “not engaging in work-related communications, including emails, telephone calls, video calls, or the sending or reviewing of other messages, to be free from the performance of work.”

The policy must include the date it was prepared and the date(s) any changes were made to it. Employers will be required to provide a copy to each employee within 30 days of preparing this policy, or, if an existing policy is amended, within 30 days of any change(s).

The same 30-day window applies to providing new employees with the policy as well. Notably, employers will be required to retain copies of every policy for three years after the policy ceases to be in effect.

TO WHOM THE POLICY APPLIES

Pursuant to s. 1(1) of the ESA, an “employee” is defined as a person (including corporate officers) “paid to perform work for an employer, a person paid to supply services to an employer, a person being trained by an employer to perform a skill used by the employer’s employees, and homeworkers.”

Ontario Regulation 285/01

(Exemption, Special Rules and Establishment of Minimum Wage), (Regulation) indicates which individuals are exempt from Parts VII to XI of the ESA.

As the requirement to put these policies in place is in the new Part VII.0.1 of the Act, presumably the individuals listed in the regulation as exempt from Parts VII to XI of the ESA are exempt from the policy’s application. They are specific professionals and students-in-training for these vocations, commercial fisherman, salespersons or brokers as defined in the Real Estate and Business Brokers Act, 2002, specified commissioned salespersons, and specified farm employees.

The ESA remains silent as to whether any other employees will be exempt from the policy’s application. Such exemptions, if any, may yet be prescribed by regulation.

REQUIRED CONTENTS

Notably, Bill 27 does not stipulate any requirements for the content of the employer’s policy. Specific requirements are expected to be published later in a regulation. The Ontario government set out some examples in its October 25th announcement, including setting expectations for response time for emails and encouraging employees to turn on their out-of-office notifications when not working. These examples are not binding on employers, but represent a starting point as they flag what upcoming regulations might require in employer policies.

In terms of compliance, employers have six months from that date (and not March 1) to put a policy in place. The date the employer would use for assessing whether it has 25 or more employees would be the January 1 preceding the date that is six months after the day the legislation receives royal assent.

This newly passed legislation stems from recommendations made by the Ontario Workforce Recovery Advisory Committee (OWRAC), which consulted with a range of community stakeholders including workers, employers, and unions. The OWRAC was established this summer to help position the province as “the best place in North America to recruit, retain, and reward workers.”

IMPLICATIONS FOR THE REAL ESTATE INDUSTRY

The real estate and property management industries may face particular hurdles with respect to implementing the disconnecting from work policies.

In order to oversee and manage projects with minimal disruption to commercial or residential properties, the flow of work or to people’s lives, employees in these industries are typically required to respond to work demands in real-time, at off hours, and across a wide array of physical settings.

While some oversight and management can be done remotely and within ‘reasonable’ working hours—for example, conducting virtual property oversight— the nature of each project may inherently require on-site staff, whether it be facility cleaners, property managers and/or maintenance staff, in order to ensure safety, compliance, and efficiency.

In addition, employees desperate to keep their jobs amid such economic uncertainty are intent on being nimble and available at all hours to respond to employer demands across all sectors. Technological advancements have more deeply entrenched the expectation of meeting real-time demands, thereby undermining the notion of a “typical work day” in sectors that require aroundthe-clock commitments.

As public health guidance around work landscapes (both physical and substantive) continues to shift, employer flexibility and adaptability to different forms, modes or methods of property management and oversight, predicated on transparency, will be key.

Now that Bill 27 has passed into law, employers with more than 25 employees on January 1, 2022, should start thinking about their disconnecting from work policies, which they will need to roll out by June 2, 2022. Employers should also consider what other policies covering hours of work and/or overtime might need addressing to ensure consistency with their new disconnecting from work policy.

Many fear this legislation, instead of helping workers and/or promoting better work-life balance, may create a two-tiered workforce by which some employees would choose to disengage according to the policy in place.

Others could remain constantly available, hungry for additional work and intent on earning overtime pay, being considered for promotions and/ or bonuses. The inadvertent prospect of reputational or financial punishment for those employees abiding by the policy could be significant.

The extent to which it is even plausible for the real estate and property management industries to fully disconnect in compliance with “regular” work days remains to be determined by the scope outlined in forthcoming regulations.

Important questions remain around implementation and enforcement. It may require these sectors to reconceptualize the ways in which management and oversight are carried out.

This includes the possibility of streamlining processes to enhance efficiencies (including advanced technology), and/or the reconfiguration of tasks and the diversification of workforce composition to ensure work is completed appropriately while respecting employees’ rights—without reprisal. | CFM&D

Flora Vineberg is a lawyer at SpringLaw. She specializes in labour and employment law, with a specific focus on sexual assault, harassment and human rights litigation, and workplace investigations. Employing a client-centred and trauma-informed approach, Flora’s background in both criminal and civil law enables her to represent clients from all walks of life with compassion, tenacity and focus. She can be reached at fvineberg@springlaw.ca www.springlaw.ca.