June 7, 2022W

The Workplace Safety and Insurance Board of Ontario (WSIB) announced yesterday that it is doubling the rebate for small businesses (under 99 employees) that are enrolled in its Health and Safety Excellence Program.

The Program connects Ontario businesses with approved providers in their industry or community who help design a plan based on 36 available health and safety topics. 

For each topic completed and validated, businesses can earn a rebate on their WSIB premiums. This new incentive doubles those rebates.

In the announcement, WSIB President and CEO Jeffery Lang said “I hope every entrepreneur out there is listening and checks out how they can benefit from this program. Any small business can now earn their entire premium back simply by prioritizing health and safety.”

You can find out more about the program and rebates and sign up directly at wsib.ca/healthandsafety.

The full news release and details are below. I hope you find this information helpful. Please contact me for assistance working through your staffing matters.

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NEWS RELEASE

WSIB doubles rebates for smaller businesses enrolled in its Health and Safety Excellence program

Eligible businesses also get $1,000 toward developing their action plan in 2022.

Retroactive double rebate applies for every topic completed since March 2020

KITCHENER, June 6, 2022

The Workplace Safety and Insurance Board (WSIB) is sweetening the incentives for smaller businesses with fewer than 99 employees to invest in health and safety. A new pandemic bonus will double the rebates eligible businesses can earn for each topic they complete in the WSIB’s Health and Safety Excellence program.

“We know Ontario businesses work to have the safest workplaces anywhere, but many smaller businesses are still recovering from the pandemic,” said Jeffery Lang, President and CEO of the WSIB. “We are stepping up with added incentives to help get more businesses investing in health and safety right now.”

The WSIB’s Health and Safety Excellence program connects Ontario businesses with approved providers in their industry or community who help design a plan based on 36 available health and safety topics. For each topic completed and validated, businesses can earn a rebate on their WSIB premiums. Since 2020, over $21 million in rebates have been issued to Ontario businesses.

The new pandemic bonus for smaller businesses will:

• double the rebate for topics completed in 2022
• retroactively double the rebate for topics completed since March 2020 for eligible businesses who enroll in new topics this year
• pay an additional $1,000 toward the development of action plans in 2022

When the Health and Safety Excellence program launched in November 2019, there was a cap on rebates with small businesses able to earn up to 75% of their premium back. Now that cap is also being removed.

“We are firmly planting our stake in the ground to say we’re serious about helping small business to develop and implement strong health and safety programs in Ontario,” said Rod Cook, Vice President of Workplace Health and Safety Services at the WSIB.

Lang toured Kitchener Waterloo construction company SG Cunningham, a Health and Safety Excellence program member, to see first-hand how the program is helping smaller businesses.

“The Health and Safety Excellence program has helped us build out our own program while earning premium rebates,” said Beverley Cunningham, VP Health and Safety and Communications at SG Cunningham. “I think this added incentive will get more businesses like ours into the program which should ultimately mean fewer injuries. That’s the goal.”

“Any small business can now earn their entire premium back simply by prioritizing health and safety,” said Lang. “I hope every entrepreneur out there is listening and checks out how they can benefit from this program.”

Businesses can learn more about the program, rebates, and sign up directly at wsib.ca/healthandsafety.

May 20, 2022

Further to my post of March 31 regarding the passing of Bill 27, Working for Workers Act, 2021 and the “Disconnecting From Work Policy” covered in the legislation, I recently co-presented a webinar on the subject at the invitation of Addiction and Mental Health Ontario, Children’s Mental Health Ontario and Canadian Mental Health Association Ontario Division.

The webinar can be viewed at this link. No password or special software is required.
https://us02web.zoom.us/rec/play

I would like to thank Karen Cook of AMHO and Sandani Hapuhennedige of CMHO for the opportunity to present this webinar and to thank my co-presenter Irene Lis of Aligned People Strategies. I hope you find it informative.

Click here »» to view the March 31 post, which includes guidance on constructing your own Work From Home Policy as well as a downloadable template.

Please contact me if you require assistance in preparing a policy for your organization.

As I informed you in my client update of December 6, the Ontario government passed  Bill 27, Working for Workers Act, 2021 on December 2, 2021. This Bill introduced significant changes to workplace laws, including amendments to the Employment Standards Act, 2000 (“ESA”).

One of the most noted of these amendments is the requirement of employers that employ 25 or more employees to have a written policy with respect to ‘disconnecting from work’.

The requirement is for the employer to clarify its policy regarding disconnecting from work and to make this written policy available to all employees by June 2, 2022.

To be clear, the employer is not required to create a new right for employees to disconnect from work and be free from the obligation to engage in work-related communications in its policies. 

Those employee rights under the ESA to not perform work have been established through other ESA rules, such as hours of working periods, vacation with pay and public holidays.

For companies that meet the 25 or more employees threshold, we have prepared a draft template package to assist you in the preparation of your own Disconnecting From Work Policy. There is also an accompanying series of Questions to Assist in Preparing Your Disconnecting From Work Policy

Organizations with fewer than 25 employees may also find it helpful in clarifying disconnecting from work guidance, even though there is no requirement to do so.

The template and question package is in .docx format and can be accessed and downloaded here:
Questions to Assist in Preparing Your Policy (these are also below)
Template: Disconnecting From Work Policy

The Ministry’s guidelines can be accessed at this page on the government of Ontario website: https://www.ontario.ca/document/your-guide-employment-standards-act-0/written-policy-disconnecting-from-work#section-2

I hope you find this information helpful. Please contact me if you require assistance in preparing the final policy for your organization.

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Questions to assist in construction of Disconnect From Work Policy

The downloadable template has been prepared only as a guide that should be revised to incorporate the particular circumstances of your business.

It is not necessary to answer all of the questions, but you may find them helpful in evaluating what you should include in your policy.

Who is required to have a written policy?
Employers with 25 or more employees in Ontario on January 1 of any year are required to have a written policy on disconnecting from work.

• It is the individual number of employees that are counted, and not the number of “full-time equivalents.” 
• Part-time employees and casual employees each count as one employee, regardless of the number of hours they work.
• When determining the number of employees you must consider multiple locations within Ontario, related employers, and temporary help agency considerations.
• If you have a total of more than 25 employees but fewer than 25 employees in Ontario you are not required to have a written policy.
• The term “employee” is defined in Section 1(1) of the ESA

The requirement for a policy does not apply to the Crown, a Crown agency or an authority, board, commission or corporation whose members are all appointed by the Crown and their employees.

2. What is required in the policy?
The legislation is limited to a policy that must address “disconnecting from work” and include the date the policy was prepared and the date any changes were made. 

Other than these requirements, the ESA does not specify the information the employer must include in the policy nor does it specify that the policy must be a particular length. 

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

3.  Does the policy have to be the same for all employees?
No. The policy must apply to all of an employer’s employees in Ontario, including management, executives, and shareholders if they are employees under the ESA.

However, there is no requirement for the employer to have the same policy for all employees. In many cases it may be beneficial or necessary to outline different policies for different employees.

4.  When must an employer have a disconnecting from work policy in place?

• First year of requirement: Employers with 25 Ontario employees or more must have a written policy on disconnecting from work before June 2, 2022.
• Beginning in 2023 (and years that follow): Employers with 25 or more Ontario employees on January 1 of any year must have a policy in place before March 1 of that year.

5.  How must the policy be provided to employees?
Employers are required to provide a copy of the written policy to all employees within 30 days of:

• The policy being prepared;
• The policy being changed;
• A new employee being hired.

The policy may be provided as:

• A written and printed policy;
• An attachment to an email if the employee can print a copy;
• A link to the document online if the employee has a reasonable opportunity to access the document and a printer.

4. What should an Employer consider when preparing a policy?

The Ministry’s guidance says that the policy may set out employer expectations for different situations.

As noted above, the policy may differ according to the employee’s position and/or responsibilities. All expectations for all employees may be included in a single Disconnect From Work Policy or you may find it beneficial to have different policies for different employees, such as management employees.

It may also vary according to other expectations such as:

• Time of day of the communication;
• Subject matter of the communication;
• Who is contacting the employee (for example the client, supervisor, colleague);
• Employer expectations, if any, of employees to read or reply to work-related emails or answer work-related phone calls after their shift/normal work hours are over
  • there may be some communications that can be sent to employees after hours but do not need to be read or responded to until an employee is on shift/actively working
• Employer requirements for employees turning on out-of-office notifications and/or changing their voicemail messages, when they are not scheduled to work, to communicate that they will not be responding until the next scheduled work day.

You may also want to consider any logistical information or suggestions:

• Calls to replace absent staff members;
• Overtime calls;
• Calls to on-call employees;
• Calls about emergency circumstances that cannot wait until the staff member returns to work;
• How communications will be made.i.e. phone, text, and/or email
• Can staff be encouraged and/or directed to schedule emails to be sent only during an individual employee’s work day?
• Ways in which after hours communications might be reduced as much as possible

February 24, 2022

The Ontario government is proposing legislation that would require employers of more than 25 people to tell their workers if and how they are being monitored electronically.

The full News Release is below, I have excerpted this section containing the most relevant information:

The policy would need to contain information on whether the employer electronically monitors its workers, and if so, a description of how and in what circumstances the employer does this. In addition, the employer would need to disclose the purpose of collecting information through electronic monitoring.I hope you find this information helpful.

The legislation is expected to pass and I will keep you informed as it comes into effect.

Please contact me for assistance working through your staffing matters.

NEWS RELEASE

Ontario Requiring Employers to Disclose Electronic Monitoring

Proposed changes would require large employers to tell their workers if, how and why they are being monitored

February 24, 2022
Labour, Training and Skills Development

KITCHENER — The Ontario government is working for workers and plans to introduce new legislation later this month that would require employers to tell their workers if and how they are being monitored electronically. If passed, Ontario would become the first province to require electronic monitoring policies and protect workers’ privacy by requiring employers be transparent on how employees’ use of computers, cell phones, GPS systems and other electronic devices are being tracked.

“Today, businesses have more ways than ever before to monitor where their workers are and what they are doing. Whether you are a delivery person being followed by GPS, a construction worker using a company phone, or an office worker logging in from home, you deserve to know if and how you are being tracked,” said Monte McNaughton, Minister of Labour, Training and Skills Development. “The future of work is changing, which is why our government is leading the country to ensure workers remain in the driver’s seat.”

Under the proposed changes, employers with 25 or more workers will be required to have a written electronic monitoring policy in place for all their employees. The policy would need to contain information on whether the employer electronically monitors its workers, and if so, a description of how and in what circumstances the employer does this. In addition, the employer would need to disclose the purpose of collecting information through electronic monitoring.

This proposal, and others to be unveiled in the coming days, follow legislation introduced in the fall to remove unfair and discriminatory barriers against foreign-trained professionals, create the “Right to Disconnect”, and ban the use of non-compete clauses, all designed to make Ontario the best place to live, work, and raise a family.

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Quick Facts

• This new requirement would, if passed, apply to employees working in the workplace, in the field or at home.

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• A recent Ipsos survey conducted on behalf of the Ontario Workforce Recovery Advisory Committee revealed that 89 per cent of people in Ontario believe that the workplace has changed permanently due to COVID-19 and the province needs to act to update employment regulations, as a result.
   
• The COVID-19 pandemic initiated the largest shift to remote work in history with 32 per cent of Canadians aged 15 to 69 working from home in January 2021, compared to just 4 per cent in 2016. At the same time, technologies available for businesses to monitor their employees has risen over the last decade as well.

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Additional Resources

• Working for Workers Act, 2021
• Your Guide to the Employment Standards Act
• Ipsos Survey: How COVID has changed how we work and what we need to prepare for the future

February 3, 2021

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In two recent decisions, arbitrators have upheld employer vaccination policies when they were demonstrated as being necessary and reasonable.

Employers are required to balance individual employee rights with an obligation to maintain a safe workplace for all. These cases indicate that arbitrators will rule favourably when the employer has considered that a less onerous policy will not suffice.

I have provided summaries of the two cases below. There are details in each that I have edited in order to highlight the key elements. The full decisions are available online for reading or downloading as indicated.

I hope you find this information helpful. Please contact me with assistance working through your employment and labour law matters.

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Bunge Hamilton (‘Company’) and United Food and Commercial Workers Canada, Local 175 (‘Union’)
January 4, 2022 »» read / download

The Union filed a policy grievance alleging that a new COVID-19 vaccination policy issued by the Company “violates employee personal privacy/personal information and employee privacy rights”.

Background
The Company operates an oilseed processing facility with different but coordinated operations in two adjacent properties, known as the North Property and the South Property.

The Bunge office, training and primary operations are located on the North Property. The South Property is largely dedicated to shipping and pre-shipping/storage operations.

Employees are regularly scheduled to perform jobs that are located on one side or the other, but employees may be reassigned to any jobs on either side of the Company’s operations at any time as the Company may deem necessary.

The North Property is located on land leased from the Hamilton Oshawa Port Authority (‘HOPA’), which is a federally-regulated organization. The South Property is owned by Bunge.

On November 2, 2021, the Company received an email from HOPA which advised Bunge of a HOPA vaccination policy issued pursuant to new Transport Canada directions, that required, “all employees of companies located at the port are required to be fully vaccinated by January 24, 2022, with exception for those that are unable to get vaccinated based on a Certified Medical Contraindication”. 

Under “Consequences for Non-Compliance” the HOPA Policy States:HOPA contractor and tenant employees who do not attest that they are Fully Vaccinated by January 24, 2022 and in accordance with this policy will not be permitted on HOPA property until such time as they can attest that they are Fully Vaccinated.HOPA contractor and tenant employees who make false attestations related to vaccination status will be subject to a six (6) month trespass period from HOPA Property”The HOPA Policy included provisions for protection of, “Personal information in a manner that respects the provisions of the Privacy Act and other applicable legislation.”

Subsequent to this notice from HOPA, Bunge issued a revised version of its COVID-19 Vaccination Policy that it previously implemented, explaining that, “all employees of companies located at the HOPA port will be required to be fully vaccinated by January 24, 2022. As a HOPA tenant, Bunge is required to comply with this mandate.”

The stated purpose was; “To comply with federal requirements and HOPA’s mandate, and to also provide for a safe work environment during the COVID-19 pandemic and safeguard the health and safety of employees, contractors, visitors and vendors.” 

The revised “ New Policy” included an additional provision for protection of privacy beyond the HOPA policy:If the Company elects to store proof of vaccination, it will be stored in a confidential medical file which is separate and apart from the employee’s or other person’s personnel file and will be kept secured and confidential. Vaccination status information will be destroyed when the pandemic is declared over by public health officials or when vaccine verification measures are determined not to be a necessary, effective or proportionate response to address the public health purposes.The Company also allowed for additional exemptions beyond the Certified Medical Contraindications in the HOPA policy, including consideration of exemptions for Religion/Creed. 

The Union filed a policy grievance alleging that Bunge’s November 22, 2021 Policy violates employee personal privacy/personal information and employee privacy rights.

Submissions
Union Submission
The Union submitted that the Policy infringed upon employees’ rights to keep their confidential medical information private through the requirement that employees disclose their vaccination status, which it asserted was in breach of the Personal Health Information Protection Act, 2004 (“PHIPA”), specifically section 19. 

The Union also submitted that the HOPA Policy only applies to the North Property, as it is only that property that is leased from HOPA, so the Employer cannot justify the application of the New Policy to the South Property on the basis that HOPA requires that it do so.

It requested that employees not be required to disclose their vaccine status, mandatory testing be included as an option as part of the Policy, and unpaid leaves, suspensions, or terminations not be allowed as part of the Policy.

Company Submission
The Company submitted that the disclosure of vaccine status is not information protected by PHIPA, and in the circumstances of the pandemic and the HOPA Policy, it is reasonable to demand this information of employees.

The Employer argued that the HOPA Policy applied to both North and South Properties, and that it would be impractical to distinguish between the two locations, as they are integrated in operation: isolating unvaccinated employees to work only in the South Property would materially interfere with the production of its product.

The Employer submitted that it is premature to consider the Union’s objection to unpaid leaves, discipline and termination, as no employee has yet been put on unpaid leave, been disciplined, or been terminated.

Decision
1: The Arbitrator dismissed the grievance. He ruled that the Vaccine Policy was introduced because the Employer was bound to comply with the HOPA Policy.

Non-compliance would render the continued operation of the Company’s business potentially unfeasible, since it would then be barred from access to the North Property.

2: He found that the requirement to disclose vaccine status was reasonable and  “It is not clear that PHIPA would prevent the disclosure of an individual’s vaccination status in the circumstances at hand.”

3: In regard to the application of the policy across both properties, the Arbitrator ruled:

“Even assuming that the HOPA Policy does not require that it be applied to the South Property, given the significant disruption to the ability of the Employer to conduct its business if different vaccine policies or practices applied to the two locations, it is reasonable for the Vaccine Policy to apply to all employees regardless of their work location.”

4: With respect to the Union’s request that mandatory testing be included as an option as part of the Policy, the Arbitrator ruled that “using testing as an alternative to a mandatory vaccination requirement would put the Employer in breach of its lease obligations with HOPA.”

5: With respect to the references in the Vaccine Policy to discipline and termination, the Arbitrator noted that the union had the option to file a grievance if an employee was disciplined or discharged.

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Hydro One Inc. and Power Workers’ Union
January 31, 2022  »» read / download

In the case of Hydro One and the Power Workers’ Union, Grievances were filed by the PWU on behalf of 12 employees (‘Grievors’) who were placed on a leave of absence unpaid (‘LAU’) for failing to comply with the COVID-19 Vaccination Policy  of Hydro One (Company).

Background
On September 22, 2021, Hydro One introduced a COVID-19 Vaccination Policy which it communicated to all employees by email. 

On November 2, 2021, after consultation with the PWU, the Policy was revised. 

The revised Policy stated that “effective October 22, 2021, all employees are required to provide Hydro One with proof of vaccination status or confirmation of a medical exemption, exemption under the Ontario Human Rights Code, or that the employee declines to disclose their vaccination status.”

“Those employees who decline to disclose their vaccination status and those who are unvaccinated are required to undergo regular COVID-19 rapid antigen testing (RAT) prior to reporting to work effective November 8, 2021.”

The Grievors, for various reasons, all failed to comply with the Policy’s requirements to either provide proof of vaccination or provide a negative “rapid antigen test” (“RAT”). 

Hydro One placed each of the Grievors on a “leave of absence unpaid” (“LAU”) until they complied with the Policy. One of the Grievors subsequently retired, while the other Grievors eventually complied with the Policy, resulting in their return to work.  

Submissions
PWU Submission
The PWU took the position that the Grievors had legitimate concerns about the Policy and that Hydro One did not address such concerns in a timely manner and violated the Collective Agreement by acting unreasonably in addressing concerns raised with respect to the testing and reporting protocols found in the Policy.

As a result, the Grievors were unable to comply with the November 5, 2021, deadline, leading to their LAU. 

The PWU maintained that the Grievors should not have lost wages for their “early non-compliance” and instead should have been able to work from home, where possible. 

The PWU sought payment to all the Grievors for the period of time they were on a LAU.

Hydro One Submission
Hydro One asserted that they acted reasonably in the circumstances and the Policy is a reasonable response to the current COVID-19 global pandemic

Hydro One maintained that the Policy was carefully crafted to balance employee rights, while addressing the threat of infection in the workplace. 

Hydro One notes that COVID-9 infections in the workplace would not only adversely affect operations, but may also place employee health and safety in jeopardy. 

Hydro One argues that it was reasonable in placing the Grievors on a LAU when they failed to comply with the reasonable terms of the Policy.

Decision 
The Arbitrator dismissed all of the grievances, ruling that:the Policy is reasonable and is necessary to address the on-going health and safety issues arising from the current COVID-19 global pandemic Hydro One is complying with their obligations under the Occupational Health & Safety Act, to take reasonable precautions to protect the health and safety of their employees and the public that they serve.with the revised Policy of November 2, 2021, Hydro One had addressed PWU concerns in good faith and within a reasonable period of time by providing fair and adequate responses.the Policy applies the precautionary principle to address legitimate workplace concerns in a fair and balanced approach and is a reasonable compromise that respects employee rights and balances the various important interestsit is fair and reasonable in the circumstances of this pandemic to prohibit employees from attending work if they do not provide proof of vaccination or a negative COVID-19 RATit is not necessary to provide remote work where a reasonable alternative has already been provided to those employees who refuse to disclose their vaccinated status (i.e., RAT)it is the free choice of employees to refuse the reasonable alternative, but Hydro One has no further obligation to accommodate such individualsaccommodation of the Grievors with remote work is not necessary or required in these circumstancesmost of the Grievors could not perform their work remotely in any eventHe acknowledged that some of the concerns raised by the Grievors may have been legitimate, but ruled that most, if not all, of those concerns ought to have been raised in a timelier manner.

The Grievors all had reasonable advance notice about the requirements of the Policy but had waited until the very last minute to raise their concerns about the Policy.

On December 2, 2021, the Ontario’s ‘Bill 27, An Act to amend various statutes with respect to employment and labour and other matters’ (‘the Act’) received Royal Assent.

I have previously advised that the Act, referred to as the ‘Working for Workers Act’,  would introduce a number of amendments to the ESA, most notably in regard to regulations surrounding work-related emails during personal time and post employment non-compete terms in employment contracts.

The Act also makes amendments to licensing requirements for recruiters and temporary help agencies and requirements for business owners to permit washroom access for delivery workers.

I have reviewed the legislation and provide my thoughts on the implications for employers below.

As always, my comments are about the Act in general and your business or workplace may have specific or unique circumstances that fall outside the general scope of the regulations. Please contact me if you have any questions or for advice on your particular situation.

Disconnecting from work policy
This is the most widely discussed and applicable section of Bill 27. The act requires employers with 25 or more employees to have a written policy in place for all employees with respect to “disconnecting from work.” 



When the act is fully implemented, qualifying employers will need to have this policy available by March 1 of any year. However, employers have until June 2, 2022 – six months from the date the Act received Royal Assent – to formulate this first policy.

The term “disconnecting from work” is defined to mean: “engaging in work-related communications, including emails, telephone calls, video calls or the sending or reviewing of other messages, so as to be free from the performance of work.”

The Act does not yet mandate what specifics would be required in the policy, but it is anticipated that details will be forthcoming. 

It is also likely that future amendments to the regulations will exempt certain classes of employees from the policy, particularly those exempted from the hours of work and overtime provisions of the ESA.

I will keep you informed about any information issued in regards to both of these matters.

Until such time as the government does provide more detail, it would be prudent to prepare for the policy by conducting internal reviews of the number of after-hour communications sent to employees – including employees who may be exempt.

In regard to drafting the elements of the policy itself, and in the absence of specific guidance from the Ministry, I suggest that you consider including expectations about prolonged response time for emails and encouraging employees to turn on out-of-office notifications when they are not working.

Prohibition of non-compete clauses
The second most discussed amendment is that, subject to narrow exceptions, Bill 27 introduces a prohibition against including non-compete clauses in employment contracts. In the past the enforceability of non-compete terms post employment has been subject to the decision of judges at common law. The test for whether a non-compete was enforceable focused on whether the clause was reasonable in terms of its scope and duration.

The outright ban of Bill 27 prohibits employers from entering into employment contracts or other contracts that are, or include, a non-compete agreement.

This prohibition applies to all employees, except for “executives” and when such agreements are entered into in connection with the sale of a business.

The prohibition is deemed to be in force and effective as of October 25, 2021 (the day of first reading of Bill 27). Any non-compete agreement entered into on or after October 25, 2021, in violation of Bill 27 will be rendered void and unenforceable.

The Act in its current form does not address agreements that have already been entered into and whether those agreements will be subject to the outright ban, or have to meet the common law test of reasonability.

Again, I will keep you informed as more information becomes available.

In regard to the wording of the Act, it defines “non-compete agreement” as “an agreement, or any part of an agreement, between an employer and an employee that prohibits the employee from engaging in any business, work, occupation, profession, project or other activity that is in competition with the employer’s business after the employment relationship between the employee and the employer ends.”

It further defines “executive” as “any person who holds the office of chief executive officer, president, chief administrative officer, chief operating officer, chief financial officer, chief information officer, chief legal officer, chief human resources officer or chief corporate development officer, or holds any other chief executive position.” 

While the Act references job titles, it is likely that the definition of “executive” will be dictated by an employee’s duties rather than the simple use of a title. Further guidance may be forthcoming from the Ministry of Labour. I will keep you informed.

With respect to the sale of a business, Bill 27 provides that a non-compete agreement can be entered to if:

• there is a sale of a business or a part of a business; and
• as a part of the sale, the purchaser and seller enter into an agreement that prohibits the seller from engaging in any business, work, occupation, profession, project or other activity that is in competition with the purchaser’s business after the sale and, immediately following the sale; and
• the seller becomes an employee of the purchaser.

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Licensing requirements for recruiters and changes related to foreign nationals
Under Bill 27, all temporary help agencies and recruiters are required to apply for licenses to operate and prohibits persons from operating without a license.

As part of the licensing requirements, recruiters must expressly state that:

• they are aware of amendments to the Employment Protection for Foreign Nationals Act, 2009 (Act), that prohibit charging fees to foreign nationals
• they are aware that the Director of Employment Standards will refuse to issue a licence or revoke or suspend a licence if fees have been charged to a foreign national in contravention of the Act and 
• they must confirm that they have not charged such fees

Bill 27 also makes it an offence for a person, including an employer, to knowingly engage or use the service of an unlicensed temporary help agency or recruiter.

These changes to the ESA will come into force at a future date upon proclamation. Again, I will keep you informed as these changes are announced and implemented.

Washroom access for delivery workers
Bill 27 amends the OHSA to require that workplace owners ensure delivery workers have access to a washroom when they are making deliveries to or from that workplace. 

This requirement is subject to certain exceptions, such as where providing access would not be reasonable or practical for reasons relating to the health and safety of any person in the workplace or because of other circumstances related to the workplace.

Current regulations in Ontario do not require that all delivery workers be vaccinated against COVID-19. Depending on the layout of your workplace, you may make the evaluation that access to your washroom by delivery workers with unknown vaccination status could impact your obligations to maintain a safe workplace. Unfortunately, it is unclear at this point what specific parameters and dimensions would be necessary to support such an evaluation.

I hope you find this information helpful. Please contact me with any questions you may have or for assistance working through your employment and labour law matters.