The Ontario Government has now brought about a fifth wave of changes to employment laws. On October 28, 2024, Bill 190, Working for Workers Five Act, 2024, received royal assent. Bill 190 brings about significant amendments to both the Employment Standards Act (the “ESA”) and the Occupational Health and Safety Act (the “OHSA”). The most significant of the amendments are a prohibition on asking for a medical note, the expansion of health and safety obligations to digital/remote work, and a new requirement for job postings. As a result of these amendments, employers will need to ensure that they become familiar with and comply with their new obligations.
No More Asking Employees for a Doctor’s Note (Sort Of)
Pursuant to Bill 190, employers are now prohibited from requiring a medical note from a qualified health care provider (e.g. a doctor) when an employee seeks to take a sick leave.
However, there are two important qualifications to this prohibition.
First, employers are still entitled under the ESA to ask for reasonable documentation to support a sick leave request. If the employee then chooses to provide a doctor’s note, it is fine to accept the same. However, the employer should be open to other documentation. For example, if an employee says they broke their leg and sends a photo of their cast, then this photo should be accepted as reasonable documentation.
Second, where an employee advises that they need to take a sick leave further to a disability, the employer has an obligation under the Human Rights Code to discuss the potential of accommodation. To that end, the employer normally needs medical documentation (e.g. a completed medical questionnaire) confirming if accommodation is an option and what accommodation would be needed. When an employee requests a leave of absence, it is important that the employer and the employee engage in an open dialogue, supported by medical documentation. As such, an employer may still be entitled to ask for a medical note or a completed medical questionnaire, if required further to Human Rights Code obligations. In light of this new prohibition under the ESA though, employers should be careful to ensure that they are complying with both the ESAand the Code.
Health and Safety Obligations Now Extend to Remote Workplaces
The OHSA establishes the broad obligations that employers have to protect the health and safety of their workers. These obligations include obligations to provide workers with appropriate training and equipment, obligations to properly identify and address workplace hazards, and obligations to prevent and respond to workplace accidents.
Pursuant to Bill 190, the OHSA obligations now officially extend to private residences where telework is performed (i.e. remote workplaces). It cannot be understated how significant this amendment is. Exactly what this amendment means though, will not be fully appreciated for months or years to come. For example, will the Ministry of Labour start conducting investigations at private residences? Are Joint Health and Safety Committees expected to visit a worker’s private residence workplace space to identify potential hazards? When does a worker need to report if there is an accident at their private residence?
As a result of this amendment, employers should take the time to properly update their workplace health and safety policies, procedures, training, and practices to address remote workplaces.
New Digital Workplace Harassment and Workplace Sexual Harassment Obligations
Employers have obligations in regard to workplace harassment and workplace sexual harassment under the OHSA. These obligations include providing workplace harassment and workplace sexual harassment training, having workplace harassment and workplace sexual harassment policies and procedures, and responding to alleged incidents of workplace harassment and workplace sexual harassment.
Pursuant to Bill 190, these obligations now extend to virtual/digital workplace harassment and workplace sexual harassment. There are many ways in which workplace harassment and workplace sexual harassment can occur in a virtual or digital setting. Examples include an employee engaging in workplace bullying during a Zoom team meeting, an employee using a workplace group chat to share discriminatory jokes, a supervisor sending sexual text messages to a subordinate, or a customer sending an employee an obscene image via the company website chat feature.
As a result of this amendment, employers should take the time to properly update their workplace harassment and workplace sexual harassment policies and procedures. Further, employers should provide updated training to their employees on virtual/digital workplace harassment and workplace sexual harassment. Finally, employers should ensure that they adopt appropriate measures to prevent and address workplace harassment and workplace sexual harassment (e.g. monitoring the company’s Facebook page).
Health and Safety Obligations Updated to Reflect Digital Workplaces
Under the OHSA, there are numerous posting obligations, including the obligation to post the company’s health and safety policies. Pursuant to Bill 190, employers are now able to satisfy these posting obligations by making the information readily available via an accessible electronic format. This is a positive new option for employers, especially for those that already have a system for electronically sharing information with their employees. Employers should be mindful though to ensure that they still create and maintain records which confirm that employees have been informed of and have reviewed any required information. This can include saving emails where new posted information has been shared with the team.
Yet Another Upcoming Change to Job Posting Obligations
Back in March 2024, the fourth wave of employment law changes (Bill 149, Working For Workers Four Act, 2024) received royal assent. Under Bill 149 and on a date to be named, there are four forthcoming new requirements for public job postings:
- Disclose the Salary Range: Public job postings will soon be required to disclose the salary/wage range for the advertised position. Pursuant to the amendments, the government can introduce regulation that will create exceptions for this requirement and provide further details about this requirement.
- Disclose Any Use of AI. Employers will soon be required to reveal in job postings if they use AI during the hiring process. This would include using AI to screen applications, using AI to assess interview answers, etc.
- Do Not Require Canadian Work Experience. Employers will soon be prohibited from requiring Canadian work experience from its potential applicants. As such, no public job posting should include a reference to preferring candidates with Canadian work experience. Of course, employers will remain able to consider Canadian work experience, subject to the Human Right Code.
- Keep a Copy of the Job Posting. Employers will soon be required to keep a copy of all public job postings for at least three years. While the planned legislative retention period is only three years, employers may wish to keep a record of job postings for longer. The record of a job posting can play an important role in employment litigation, including confirming the parties’ understanding of the role’s duties and responsibilities.
As a result of Bill 190, there is now a fifth forthcoming new requirement for public job postings:
5. Disclose Whether the Position is Vacant. Employers will soon be required to say if they are advertising a position that has an existing vacancy. As such, employers will need to disclose if there currently have an employee in that position (who is assumably is quitting or is about to be dismissed). Further, employers will need to disclose if the job posting is further to a current employee’s leave of absence. It should be noted that the Ministry of Labour has not yet updated its Policy and Interpretation Manual to explain its position on this new obligation.
For strategic advice on addressing the above new obligations, including updating your health and safety policies and procedures and updating your workplace harassment and workplace sexual harassment policies and procedures, please contact our firm.
