On Nov. 30, 2021, the Ontario government passed the Working for Workers Act (WWA) with Royal Assent expected to follow within the coming weeks.
The WWA impacts a number of employment related areas and legislation, including but not limited to two notable changes to the Employment Standards Act, 2000 (ESA) that this article focuses on. These changes are touted as “changing work/life balance for employees” – but only one of the two changes actually touches on work/life balance.
The first and most significant change to the ESA under the WWA is the legislated right of employees to disconnect from work related communications. This right is a cornerstone of these most recent changes.
Under the right to disconnect employers with 25 or more employees are required to develop – and implement and train employees on – written policies reinforcing this government supported right to disconnect from work. Arguably, enlightened employers would have already made this right clear to their employees, particularly those working from home during the pandemic and at a time when mental health issues are at an all time high, and prudent employers should have already recognized the current labour market realities and the impact of the shortage of supply relative to demands for labour and made this right a clear priority for their employees.
As I previously wrote, this right is expressly defined by the WWA as the right not to engage 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. This obligation kicks in six months after Royal Assent (which has not yet occurred) and employers are provided a grace period for 2022. Once the law comes into force, these policies must be in place by March 1 of each year and be given to new employees within 30 days of their commencing employment.
ESA provisions currently in place already exist to assist employees with avoiding after hours work communications – such as its break between shifts and overtime provisions – with the latter supported by a plethora of Court cases, including class actions that employees taking work related calls and emails after hours constitutes work for which they are entitled to pay, including overtime pay.
Overtime is a business expense that many employers avoid. But so should be poor morale, illness and absenteeism. A recent Statistics Canada report entitled Survey on COVID-19 and Mental Health (SCMH) found that from February to May 2021 one in four Canadians over the age of 18 screened positive for symptoms of depression, anxiety, or PTSD in the Spring of 2021. This was up from one in five in the Fall of 2020. While experiencing symptoms of one of more of these mental health conditions do not necessarily indicate a disorder, they do indicate that such symptoms can undermine an individual’s well-being and quality of life as well as the need for mental health supports.
I will be curious to read what exemptions if any are prescribed in the regulations to ESA. Given the current exemptions in place I would expect certain employees already exempt from hours of work and overtime provisions of the ESA by its regulations – such as lawyers and IT professionals would also be exempt from the “right to disconnect” under any updated ESA regulations.
The second change is the ban on non-compete agreements between employers and employees, whether in an employment contract or stand-alone agreement, except for executive employees and as noted previously the seller of a business that becomes an employee of the purchaser following the sale).
While non-competes generally are difficult to enforce except in relation to the prescribed exemptions anyway, an out-right ban on them does do away with the common law test for enforceability (read reasonableness as to restrictions contained in them).
What do the changes to the ESA mean for Ontario employers?
Ontario employers will want to ensure that they plan for its resulting changes to the ESA and the obligations that come with them, including to whom such changes will and won’t apply to, whether they will need to hire any additional staff, the required timeframe for compliance, how they can enforce the right to disconnect – particularly in relation to employees who don’t wish to disconnect, and penalties for not doing so. Ontario employers will also want to ensure they are knowledgeable about any related amendments to the ESA’s regulations and/or whether new regulations to the ESA are published to support these changes. This includes any prescribed required content and/or procedures for putting these policies into practice
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