On May 6, 2024, the Government of Ontario tabled Bill 190, the Working for Workers Five Act, 20241, which proposes a number of amendments to Ontario's Employment Standards Act, 2000 (ESA), the Occupational Health and Safety Act (OHSA) and the Fair Access to Regulated Professions and Compulsory Trades Act, 2006 (FARPCTA), among others.
What you need to know
- If passed, Bill 190 will make a number of changes to the ESA,
including the following:
- Job posting requirements. Employers will be required to disclose in public job postings if the position being advertised is for an existing vacancy or not.
- Combatting candidate "ghosting". Employers who interview candidates for publicly available postings will be required to provide certain information to candidates following the interview.
- Prohibiting mandatory doctor's notes. Employers will no longer be permitted to require an employee to provide a certificate from a health practitioner if an employee takes job-protected sick leave under the ESA.
- Increased penalties. Bill 190 proposes increasing the maximum fine for individuals found to have violated the ESA from $50,000 to $100,000.
- Bill 190 will also amend OHSA by, among other things, extending its application to private residences where telework is completed, expanding the definition of workplace harassment to include virtual harassment, and requiring employers to ensure washroom facilities are maintained in a clean and sanitary condition.
- Bill 190 would also amend FARPCTA to require regulated professions to have a policy addressing what alternatives to qualification documentation will be acceptable. Additionally, under Bill 190, professions will be required to have a plan in place to enable multiple registration processes to take place concurrently whenever possible.
- At the time that Bill 149 was introduced, the Ontario government also announced regulations that require employers on construction projects lasting longer than three months, where 20 or more workers are regularly employed, to provide access to menstrual products in a reasonably accessible location with a reasonable amount of privacy.
Proposed new requirements in the hiring process
Some of the most significant changes proposed in Bill 190 are those related to the hiring process, namely the requirement for employers to disclose whether a posting is for an existing vacancy and a requirement for employers to provide certain information to candidates who are interviewed. These proposed changes appear to be designed to provide greater transparency to job seekers.
According to the Minister of Labour, these changes were inspired in part to combat "ghost jobs", which are job postings for positions that don't actually exist, or that employers are not currently hiring for. "Ghost jobs" are believed to be posted to determine available candidates for a future posting or to placate current overworked employees.
The Minister of Labour advised that these requirements will be subject to consultation with stakeholders prior to being declared in force.
Proposed new OHSA changes
The other most significant changes proposed in Bill 190 are regarding OHSA requirements. Bill 190 appears to be seeking to address the different health and safety concerns that exist in a digital environment, as well as leveraging technology to address OHSA requirements.
In particular, Bill 190's extension of OHSA requirements to private residences where telework is performed has the potential to impose significant burdens on employers. The government seems to be aware of this as Bill 190 also expressly includes language that states a private residence where telework is performed is not an industrial establishment.
Further, Bill 190's proposed OHSA amendments include express recognition of workplace harassment and workplace sexual harassment taking place in a virtual environment through the use of technology. The proposed legislation makes expressly clear that an employer needs to fulfill its OHSA obligations in respect of virtual harassment.
Bill 190 also includes some language that may streamline compliance with certain OHSA requirements for employers, as it proposes permitting OHSA posting requirements to be met by making required information available electronically and allowing health and safety meetings to occur virtually.
Footnote
1. Bill 190, Working for Workers Five Act, 2024, https://www.ola.org/en/legislative-business/bills/parliament-43/session-1/bill-190.
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