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As businesses continue to look forward as they develop staffing plans to tackle 2023, they may also wish to take a quick look back at new policies that have now been added to the Employment Standards Act, 2000.

 

These include the right to disconnect legislation first unveiled in Ontario Bill 27 in December of 2021, and the electronic monitoring policy outlined in Bill 88, Working for Workers Act, 2022, and added to the ESA in April of last year.

 

The new policies – the subject of much discussion since they were first introduced - directly affect employers that employ 25 or more employees as of January 1 of any year and must be in place before March 1 of that year.

 

We reached out to Meagan Swan, an employment law expert at Pavey Law LLP in Cambridge, to offer insight on what these new policies mean for employers:

 

 

Q. What should employers be thinking about when it comes to timelines surrounding these ESA changes?

 

Meagan:  Employers were supposed to have these new policies in place last year, but as we know for some employers it takes a new year to really start thinking about what needs to be done in 2023. If an employer now has 25 employees, inclusive of all the employer’s business locations, as of Jan. 1, these policies are to be in place by March 1 of each year and provided to their employees within 30 days.

The government has been very reasonable about rolling out the new requirements and giving lots of notice in advance. As we start a new year, employers need to think, ‘do I now meet the employee threshold’ and ‘if I do, how do I create the right policy for my business’. 

The timelines each year do give employers a buffer to ensure they have any new policy reviewed before implementing them with employees.

 

 

Q. What are some of the steps employers should be taking regarding these policies if they haven’t already?

 

Meagan: The first step is to make sure they have the necessary policies in place by March 1 that work for their business. However, employers need to understand that these new policies do not give any new rights to employees. They are basically setting out what the expectations are when it comes to electronic monitoring and the right to disconnect. These policies are all about being transparent. 

An employer can tailor these policies to their business.  For the Right to Disconnect policy, an employer can outline the expectations for when an employee is required to review or respond to emails after hours or engage in other after-hours activities. 

An employer can also include exceptions in their policy to address urgent work that may arise. 

Communicating these expectations to employees is likely not new.  Rather, we are now requiring employers to have these expectations outlined in writing. I have seen some employers implement standard form policies – because there are lots of templates online – and then they end up restricting themselves more than necessary because many are very employee focused. 

These standard form policies don’t consider or address each employer’s specific business or its needs, so it’s important to obtain advice regarding the use of any template to see if it’s the right fit for your business. 

An employer should ensure their policy includes those exceptions and considerations needed for their own operations. Simply, an employer should consider obtaining professional assistance when creating their policies.

 

 

Q. What type of penalties could employers be facing surrounding lack of policy implementation?

 

Meagan: The government has not updated the regulations to include any specific penalties related to these new policies.  As of now, the standard complaint process to the Ministry of Labour is available to employees if an employer had not complied with its requirement to implement the policies.  This type of complaint will likely trigger a visit or communication from an ESA officer to investigate whether the employer is compliant.  If not, an Order requiring the employer to become compliant will likely be issued.

 

 

Q. Were there many changes to the Employment Standards Act in 2022 and did the pandemic play a role?

 

Meagan: COVID-19 has really pushed the government to implement new regulations through the ESA. For example, we had the Infectious Disease Emergency Leave (IDEL) regulation implemented to temporarily change the ESA rules related to reduction of hours, pay and layoffs.   We all know that the pandemic also required many employees to work remotely.  

Many of these employees began feeling the stresses of remote work and maintaining a balance between their home and work life. I believe the government was reacting to these pandemic related issues by implementing the requirement for employers to have Right to Disconnect and Electronic Monitoring policies in their workplace.

Many employers were hesitant at first and believed these polices would be onerous or would take away their ability to manage their own business.

But in reality, most of my clients have been able to implement policies that fit their business and it is now very transparent to employees what the expectations are for remote work and the monitoring of work.   

 

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On April 11, 2022, Bill 88 – Ontario’s Working for Workers Act, 2022 – received Royal Assent and became law.  We reviewed this new legislative change with local legal experts, Hina Ghaus and Tushar Anandasagar, of Gowling WLG (Canada) LLP.

 

“We discussed the proposed legislation, with a specific focus on workplace electronic monitoring policies, in a previous blog post.  At that stage, the legislation was still in draft form.  For the final version, we wanted to provide the members with an up-to-date overview of what actually applies,” says Tushar.

 

Here are the key takeaways:

 

Employers: “Electronic Monitoring Policy”

 

Bill 88 introduced new provisions into the Employment Standards Act, 2000 (“ESA”), which require all employers who employ 25 or more employees to have a written policy in place on electronic monitoring of employees.

 

The electronic monitoring policy must include:

  • information on whether the employer electronically monitors employees and if so,
  • a description of how and in what circumstances the employer may electronically monitor employees,
  • the purposes for which information obtained through electronic monitoring may be used by the employer;
  • the date the policy was prepared and the date any changes were made to the policy; as well as
  • any other information as may be prescribed by law in the future.

According to Hina, time is of the essence: “There are 3 key dates to keep in mind for the first year.  Employers who had 25 or more employees on January 1, 2022 must have this policy in place by October 11, 2022, and provide a written copy of the policy to existing employees by November 10, 2022.  In subsequent years, any employer who has 25 or more employees on January 1 of any year, must have a policy in place by March 1 of that year.”

 

“There are more requirements to consider regarding ongoing compliance, including when you will need to deliver a copy of the policy (once finalized) to your staff,” says Tushar.  “Employers must provide a written copy of the policy to all employees by no later than 30 days from the day the employer is required to have the policy in place, or for new employees, within 30 days of their joining date.”

 

There are additional wrinkles to consider for those businesses that utilize temporary help agency employees.  “For “assignment employees” (the ESA term for temporary help agency employees), they need to receive a copy of the policy within 24 hours of the start of the assignment, or within 30 days from the day the employer is required to have the policy in place, whichever is later,” says Hina.

 

During our last overview of the draft Bill 88, there was ongoing debate about this legislation and how it would be enforced.

 

According to Tushar, the “enforcement” mechanisms under the ESA are quite limited:  “Yes – the ESA contains several provisions which allow an employee to file a ‘complaint’ about this policy compliance requirement – but the grounds upon which the complaint can be based are very limited.  For instance, the ESA allows an employee to complain about whether a copy of the policy was provided in a timely manner, or not.”

 

Notably, there is no prohibition under the ESA which prevents an employer from engaging in electronic monitoring of one form or another. In fact, it is explicitly stated in the legislation that these requirements do not affect or limit an employer’s ability to use the information obtained through electronic monitoring of employees.

 

“As expected, there is nothing under Bill 88 which restricts an employer’s ability to monitor, or use the information obtained through monitoring, nor does it create a statutory “right to privacy” for employees,” says Hina. “There is no actual definition of ‘electronic monitoring’ under the legislation, although it is still early, and we could see clarification of this aspect of the law as we get closer to October 11, 2022.”

 

Tushar points out that the standard rules may not affect all employers the same way and pointed to the unique context of unionized workplaces.

 

“The ESA is only part of the picture. For many workplaces – notably unionized settings, a notable caveat applies where the parties to a collective agreement have negotiated language that permits or prohibits certain forms of electronic monitoring (in some cases referred to as a ‘surveillance’ clause),” he says.  “There is an extensive body of unionized case law that deals with the “reasonableness” of employee monitoring / surveillance – and that needs to be balanced with this new policy requirement.  We are actively assisting union sector employers with managing this issue.”

 

Finally, Hina notes that Bill 88 was just passed, and more is likely to be forthcoming from the province as we near October 11.

 

“We don’t have any codes of practice, guidelines or regulations (yet) on this new legislative requirement.  As with the ‘Disconnecting from Work’ policy compliance requirement, we may see the province publishing more on this issue over the coming months,” she says.

 

For the time being, Hina, Tushar and the rest of the team at Gowling WLG continue to diligently sift through the latest legislative changes. For further information, please feel free to contact Tushar at [email protected] and/or Hina at [email protected].

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The lifting of provincial and regional mask mandates is welcomed news for businesses and customers alike.

 

While restrictions remain in place for public transit, long-term care and retirement homes, shelters and jails, the decision to keep masking, vaccination, or daily screening policies in place has basically been left up to individual employers who must also consider their obligation to protect workers under the Occupational Health and Safety Act.

 

When it comes to businesses that wish to keep masking in place, setting out clear expectations in a policy is essential – especially for businesses that are public-facing, says Dr. Nadira Singh, Chair of Business at Conestoga College Institute of Technology and Advanced Learning.

 

“The first thing you have to be clear about is posting your signage. You have got to let people know you are protecting your staff and your customers,” she says, recommending businesses also post any policies on their social media channels as well. “You want to make sure they feel safe being in your business.”

 

Carrie Thomas, founder of Nimbus HR Solutions Group, agrees and recommends changing the wording on signs to ‘freshen’ that messaging and suggests even moving them to another location in the business to draw renewed attention.

 

“Sometimes, we get so used to seeing something that we don’t see it anymore,” she says. “That’s how humans are built.”

 

Consistency, says Carrie, is key and that really knowing your customer base or employees can assist employers anticipate any potential reactions.

 

“You have to make sure you communicate your policy to them,” she says, noting that conveying to them the policy may be reviewed considering how rapidly public health directives can change may allay concerns, especially if someone is confrontational. “That would not be an untrue statement because many businesses may decide to review their policies on a monthly basis, while others may look at it on a weekly basis.”

 

Having a well-thought-out policy in place that employees can clearly deliver and understand will provide them assistance when working with customers.

 

“As individuals enter a business, hopefully they have seen the signage and will comply. But if they don’t, then we need to ask them for compliance,” says Nadira, adding training employees to read verbal and non-verbal cues has become vital during the pandemic when it comes conflict resolution. 

 

She says offering alternatives to customers, such as providing them with masks if they don’t have one with them or offering curbside pickup, may help. 

 

“You want to make sure you are keeping your customers and that at the end of the day, you are also protecting everybody,” says Nadira.

 

Carrie agrees and suggests keeping the politics surrounding COVID-19 out of any policy decisions, noting talking with employees should be the first step.

 

“You need to talk to your staff and figure out where the comfort level is for all of you,” she says, explaining that focusing any policy on the health and safety of your employees and customers sends a more positive message.

 

She says showing employees they are valued will go a long way.

 

“Trying to find employees is tough right now,” says Carrie. “I said at the beginning of the pandemic, how an employer treats their employees through this is going to determine how easy it is to find staff after it ends. The employers who have taken care of their people during COVID-19 are not the ones who are going to have a problem finding staff.”

 

For more about Nimbus HR Solutions Group, visit https://bit.ly/3DgoWve

 

 

Key pieces to a mask policy:

  • Education & training
  • Creating a clear policy
  • Offering alternatives to customers
  • Referencing Occupational Health and Safety Act regulations

 

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Working from home has become the norm for thousands of people since the start of the pandemic and many may wish to continue that practice.

 

However, the question of work location is just one of many items on a growing list of work-related issues that are likely to capture additional attention as more of us are vaccinated lowering the risk of the spread of COVID-19, allowing employers to begin to try to get back to “normal”.

 

“A key issue right now is for employers to review their employment contracts and policies,” urges Melissa Roth, a human resources, labour and employment lawyer at Pavey Law LLP in Cambridge. “It’s a very worthwhile investment.”

 

She says changes in general, with respect to termination provisions, as well as changes brought about since the initial shutdown in March 2020 caused by the COVID-19 pandemic, have made it imperative for employers to revisit their employment contracts and policies.

 

“At first we didn’t have any plans for this in terms of a structure for what was going to happen when businesses were closed,” she says, referring to the laws that were in place in accordance with the Employment Standards Act, 2000 (ESA) at the time of the first lockdown. “At the end of the day, when you lay off someone you are terminating their position if you do not recall them back to work after a specific period of time.”

 

She says the introduction of the deemed Infectious Disease Emergency Leave (IDEL) changed that from an ESA perspective, allowing those temporarily laid off under the ESA due to COVID-19 to be classified as being on a job protected leave.

 

“But if you didn’t have that right reserved in your employment contract, then this is still known as a constructive dismissal in the courts,” says Melissa, noting many employers are now facing potential legal claims from employees.

 

As well, the continued ability to work from home, like other aspects of the working relationship, is a function of the individual’s employment contract, job duties and other factors.

 

“You, as an employee might be excited about continuing to work from home and may want to keep doing that but if the employer tells you that you have to come back to work, you likely have to come back,” she says, adding employees, under certain circumstances, may be able to request to continue working remotely based on protected grounds under the Human Rights Code. These requests could centre around disabilities or family issues, such as children being too young to be left at home alone since changes to the Education Act have permitted parents to keep their children out of schools.

 

“There are a lot of factors that play a role in a request to stay home and continue to work from home,” says Melissa, adding if there are no human rights grounds to remain home and it was not written into the contract, there is likely an expected obligation that an employee will return to the workplace. “There’s a lot to consider and the answer is never a black and white issue.”

 

She says some employers already had telecommuting policies in their work contracts because working remotely was already part of their regular business, but that even these policies may need updating.

 

“As an employer, you are going to have to consider if it is essential for your employee working at home to be available during core hours or whether they can make up their time throughout the day,” says Melissa. “In turn, the employee will have to know what the expectations are when working from home.”

 

As well, she says the Occupational Health and Safety Act and WSIB concerns have to be taken into consideration when assessing the possibilities of continuing to work from home.

 

“A person may be working from home and an employer still has certain obligations to take every precaution that’s reasonable under the circumstances for the protection of their worker,” says Melissa. “All of these issues have to be taken into consideration.”

 

She also encourages these considerations be included in the contracts of new hires and in employment policies.

 

Melissa mentioned that employers should turn their minds to other issues such as rapid testing and vaccination policies as they pertain to the workplace.

 

“You should have this in writing,” says Melissa, noting businesses should provide their employees with clear messaging and embrace this time as the opportunity to update their policies and contracts. “I’m just speculating, but the next pandemic is likely not going to take 100 years so let’s be prepared for this to happen.”

 

For more, visit: https://bit.ly/3hnBb0b

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