Ontario Passes Working for Workers Five Act, 2024

On October 28, 2024, the Government of Ontario passed the Working for Workers Five Act, 2024 (the “Act”). The Act is the fifth installment to a series of legislative changes following the Working for Workers Four Act, 2024, the Working for Workers Act, 2023, 2022, and 2021.

We have highlighted for employers the key changes to the employment standards legislation and occupational health and safety legislation below:

Employment Standards Act, 2000 (the “ESA”)

1. The Act created new sections under the ESA relating to publicly advertised job postings, which come into force on a date to be proclaimed by the Lieutenant Governor:
   
   • Publicly advertised job postings must include: 1) a statement disclosing whether the posting is for an existing vacancy or not; and 2) such other information to be prescribed by regulation (if any). There is an exception for publicly advertised job postings that meet certain criteria as prescribed by regulation. Currently, there is no associated regulation.
     
   • If an employer interviews an applicant for a publicly advertised job posting, the employer will be required to provide the applicant with prescribed information within the prescribed time period. There is currently no regulation setting out the prescribed information or timeline. Employers are required to retain copies of all prescribed information for a period of three (3) years after the day the information was provided to the applicant.
     
2. As of October 28, 2024, employers are now prohibited from requesting a certificate from a qualified health practitioner (i.e., doctor’s note) as evidence to support an employee’s entitlement to take their three (3) unpaid sick days under the ESA. However, an employer may require an employee to provide evidence reasonable in the circumstances that the employee is entitled to sick leave under the ESA.
   
3. As of October 28, 2024, the maximum fine for individuals who contravene the ESA was increased from $50,000 to $100,000.

Occupational Health and Safety Act (the “OHSA”)

1. The following changes to the OHSA came into force on October 28, 2024:
   
   • The Act amended the OSHA to now apply to telework performed in or about a private residence.
     
   • The definition of “workplace harassment” and “workplace sexual harassment” now include harassment and sexual harassment that occurs virtually through the use of information and communications technology.
     
   • With respect to electronic posting, employers must: 1) provide workers with direction on where and how to access the information; and 2) ensure the information is posted in an electronic format that can be readily accessed by workers in the workplace. 
2. The Act created new sections under the OHSA regarding washroom facilities in the workplace, which come into force on a date to be proclaimed by the Lieutenant Governor:
• Employers will be required to ensure that the washroom facilities provided by the employer for workers’ use are maintained in a clean and sanitary condition.
  
• Employers will be required to keep, maintain and make available records of the cleaning of washroom facilities as prescribed. There is currently no regulation prescribing the maintenance records.

Key takeaways for Employers

Employers should review their hiring and onboarding practices based on the new requirements relating to publicly advertised job postings. Further, although employers are prohibited from requesting medical notes from employees seeking to take their three (3) unpaid sick days under the ESA, employers may be permitted to request medical notes as evidence to support an employee seeking to take sick days in excess of their entitlements under the ESA. Finally, employers should ensure that procedures are in place to keep washroom facilities in a clean and sanitary condition.

If you have any questions or require more information about any of the above-noted changes, please contact any member of our Labour & Employment Group.