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Top Recent Updates and Proposed Amendments to Legislation Outside of Ontario
Legislative changes in other jurisdictions often reveal trends that may carry over to Ontario. Here are some recent changes that we are monitoring.
a) Manitoba – Orange Shirt Day
Manitoba’s Bill 4 has received Royal Assent.
Bill 4 amends Manitoba’s Employment Standards Code to include Orange Shirt Day (National Day for Truth and Reconciliation) as a provincial statutory holiday. Orange Shirt Day falls on September 30th.
The National Day for Truth and Reconciliation is now a recognized statutory holiday in Manitoba, British Columbia, Prince Edward Island, Nunavut, the Northwest Territories, the Yukon, and Federally regulated workplaces.
In Nova Scotia, provincial government offices, public schools, and regulated childcare facilities close on September 30th. September 30th is a holiday for public-sector employees in New Brunswick.
b) Prince Edward Island – Sick Leave
Last month, we reported on a private member’s Bill (Bill 106) introduced in PEI. The Bill was amended and has now passed. Rather than the five paid sick days in the original draft, the Bill amends PEI’s Employment Standards Act to entitle employees to up to 3 paid sick days per calendar year.
Only permanent employees employed for at least one year are entitled to paid sick days. Employees are entitled to 1 paid sick day per full year of employment to a maximum of 3 paid sick days.
The Bill has yet to be proclaimed in force.
c) Federal – Menstrual Products
Federally regulated employers must provide free menstrual products for employee use in workplace washrooms, effective December 15, 2023.
d) Québec – Workplace Sexual Violence and Psychological Harassment
Québec has introduced Bill 42 regarding workplace sexual violence and psychological harassment.
One of the most substantial pieces of this Bill would function to prevent employers from entering into or enforcing agreements that would disallow them to consider past discipline for physical or psychological violence committed by an employee. If passed, this Bill could prevent employees and unions from relying on certain settlements that have removed past discipline from an employee’s record.
Some other features of this Bill include:
- Clarification of the employer’s responsibility in preventing violence and harassment in the workplace.
- Mandatory training on sexual violence for arbitrators who hear grievances regarding psychological harassment.
- New legal presumptions to facilitate proof of sexual violence claims.
- Extending the time limit for filing a claim with the Commission des normes, de l’équité, de la santé et de la sécurité du travail related to injuries stemming from workplace sexual violence and psychological harassment.
- New rules and penalties regarding accessing an employee’s medical record.
- Preventing individuals who have been convicted of sexual assault from serving as a representative in certain capacities in the construction industry.
- Raising the fines for psychological harassment.
- Prohibiting reprisals against employees who report psychological harassment of themselves or a coworker.
- Allowing mediators to end mediation where they feel intervention is inappropriate.
The trend regarding legislation to address sexual misconduct, including restricting the use of NDAs, is not limited to Québec. In 2022, Ontario passed legislation (Bill 26) applicable to post-secondary institutions and sexual misconduct by employees towards students. Like the proposed Québec legislation, Bill 26 prohibits agreements that prevent a post-secondary institution from disclosing that an employee or former employee engaged in sexual misconduct. Also of note, on November 14, 2023, the Ontario government announced that it would be launching a consultation to restrict the use of Non-Disclosure Agreements (NDAs) in the settlement of cases of workplace sexual harassment, misconduct or violence. No details of the consultation have been published to date.
e) Federal – Notice Period
New Federal notice requirements will be implemented as of February 1, 2024.
The new notice entitlements are set out in the chart below:
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f) Federal – Equity
The Federal government has released a report titled “A Transformative Framework to Achieve and Sustain Employment Equity.”
This report makes 187 recommendations, including the following, which suggests the possibility of employment equity legislation impacting provincial and territorial jurisdictions:
Recommendation C.2: The Employment Equity Act should be revised to confirm that it is considered quasi-constitutional human rights legislation.
Recommendation C.4: The federal government should encourage the harmonization of employment equity frameworks across jurisdictions in Canada, in keeping with Canada’s international human rights and international labour standards commitments.
Other recommendations in the report (there were 187 in total) include:
- Clarify the meaning of the words “undue hardship” in the Employment Equity Act.
- Engage in consultations regarding paid leave for holiday observance for religious minorities.
- Require employers to report on workplace harassment and violence policies and their preventative actions.
- Implement guidelines and disclose when artificial intelligence is being used in recruitment and hiring. (Similar provisions are being proposed in Ontario)
- Ensure that non-disclosure agreements are not misused for the purpose of silencing human rights complainants or whistleblowers.
- Require employers to report on the number and types of non-disclosure agreements entered into.
- Study the feasibility of basic income policies.
- Require employers to report on workplace harassment and violence policies and their preventative actions.
- Facilitate the collection of intersectional data, including requiring employers to implement self-identification surveys for use in sustaining equitable employment practices.