Bill 190 is the latest installment in the Ontario government’s Working for Workers legislative initiatives. As of My 16, 2024, the Bill we referred to the Standing Committee on Finance and Economic Affairs at second reading and has not yet passed. This article will only focus on the Bill’s proposed amendments to the Employment Standards Act, 2000 (ESA) and the Occupational Health and Safety Act (OHSA). We will also update on some recent regulation changes that are now in effect.
Bill 190. If passed, will also amend other legislations such as the Fair Access to Regulated Professions and Compulsory Trades Act, 2006, Ontario Immigration Act, Workplace Safety and Insurance Act, 1997 and the Building Opportunities in the Skilled Trades Act, 2021.
Employment Standards Act, 2000 (ESA)
a) No Note? No Problem
Earlier this year, the government released a statement that it is proposing prohibiting employers from asking for a note from a qualified health practitioner when employees are taking sick leave. The draft Bill 190 prohibition only applies to sick leave under the ESA.
Eligible employees can take up to 3 unpaid sick days under the ESA. Currently, employers may request that employees provide evidence that is reasonable in the circumstances, such as a note from a qualified medical practitioner, to substantiate their entitlement to these sick days. If Bill 190 passes, employers will not be able to request a medical note for these absences.
These proposed changes would still allow an employer to require an employee to provide an attestation or declaration as alternatives to reasonable evidence of their illness. Further, there is nothing in the proposed changes that suggest an employer would be prohibited from requiring a note from a qualified health practitioner for leaves longer than 3 days or for other types of leaves.
b) Anti-Ghosting Legislation
Bill 190 also introduces changes related to recruitment. If passed, when employers publicly advertise a job posting they will be required to disclosure whether there is a job vacancy. Further, employers will be obligated to respond to all applicants they interviewed for a publicly posted position. Should this pass, Ontario would be the first province with this type of anti-ghosting legislation.
c) Higher Fines
Currently the maximum fine for those convicted of violating the ESA is $50,000. Bill 190 would see this fine maximum double to $100,000.
The government has also recently amended the regulation O. Reg 289/01 Penalties and Reciprocal Enforcement under the ESA to increase the fine for repeat offenders, those who have violated the same provision of the ESA 3 or more times within a 3-year period, from $1,000 to $5,000.
Occupational Health and Safety Act (OHSA)
a) Virtual Reality
Bill 190 will see a more modern and inclusive definition of “workplace harassment” to include instances of harassment and sexual harassment that occur virtually. This represents a recognition of the reality that many workers are providing services at home or not in a traditional workplace setting.
Similarly, in recognizing that workplaces are shifting to be more online, having readily accessible electronic copies of certain information, like a copy of the OHSA, would be sufficient to satisfy the posting requirement.
Most significantly, the amendments under Bill 190 to section 3 of OHSA will make the Act applicable to remote work performed in or about a private residence.
Currently, there is a requirement that joint health and safety committee meetings occur at the workplace. Bill 190 will allow such meetings to be held virtually.
b) Construction Industry
For both constructors and employers, the government is proposing a requirement that washrooms be kept clean and sanitary. A cleaning record will need to be kept and made available.
The government has also amended O. Reg 213/91 Construction Projects, a regulation under OHSA which deals with the construction industry. It has added that for construction projects that last at minimum three months which regularly employs workers of 20 or more, menstrual products must be provided. This requirement will come into force on January 1, 2025.
These proposed and actual changes represent attempts to make the construction industry, and skilled trades more broadly, accessible to women. As Minister of Labour, Immigration, Training and Skills Development David Piccini said “…an economy that doesn’t work for women, doesn’t work at all.”
Minimum Wage
Minimum wage is also set to increase in Ontario. As of October 1, 2024, minimum wage will increase 3.9% from $16.55 to $17.20 per hour.