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What’s New in Employment Law?

For years, employment law was relatively unchanged. There were new cases that made some changes in the law, but overall, the principles were fairly well established. Employers had a handle on the Employment Standards Act (the “ESA”) and a general sense of their rights and responsibilities in the workplace.

Over the past 5 years, however, employment law has been turned practically on its head. Starting with the Liberal government’s proposed overhaul of the ESA in 2018 and followed by the newly elected Conservatives’ rapid undoing of most of those changes, there have been significant developments in employment law in Ontario, with more coming at a fast and furious pace. 

Here is just a look at some of the most recent changes, and some that are likely yet to come.

Bill 79

On October 26, 2023, Ontario enacted the Working For Workers Act, 2023, which made changes to the ESA along with the Occupational Health and Safety Act and the Employment Protections for Foreign Nationals Act, 2009

The changes here are more nuanced. Reservist leave has been expanded, which is an ESA protected leave that allows employees a job-protected leave when they have been deployed by the Canadian Forces. The leave has now been expanded to cover physical or mental health illness or injury resulting from service, and the eligibility for this leave has been shortened down to 2 months of employment. 

There have been further changes to the ESA, such as mass termination provisions expanding to include those who work in an employees’ private residence (even if exclusively), and stronger prohibitions against recruiters and temporary help agencies charging recruiting fees to employees or prospective employees who are foreign nationals. The new Bill also increased potential fines for convictions under the Occupational Health and Safety Act from $1.5 million to $2 million.

Another significant change to the Fair Access to Regulated Professions and Compulsory Trades Act, 2006 is the acknowledgement that foreign work experience needs to be valued equally alongside Canadian work experience. Many regulated professions require ‘Canadian experience,’ which places an impossible burden on foreign-trained professionals and ultimately leaves many highly skilled professionals underemployed in Canada. Now, the Bill states that “Canadian experience may be accepted in satisfaction of qualification for registration only if alternatives to such experience are also accepted.” The move is just one of many on the horizon pushing employers away from requiring previous Canadian experience so that valued candidates are not simply left on the table. 

Another Potential Sick Leave

The ESA has a number of leaves available for employees who are also serving as caregivers for their own family members. The Family Medical Leave and the Critical Illness Leave are just two examples of unpaid job-protected leaves that employees can take to care for those closest to them through a serious illness.

But what about when the employee is also the patient? For employees who have employer-provided benefits coverage, they may be able to apply for short-term or long-term disability benefits, but for employees without benefits the threat of a job loss on top of dealing with a serious illness can be a tremendously scary burden.  However, the Provincial government has announced that they are currently in consultations for a new job-protected leave to cover employees who are seriously ill themselves. 

What else is coming?

Believe it or not, this is not the end of the changes coming down the pipeline! 

The Provincial government is already speaking about further changes to come in the next several weeks that will create even more significant shifts to the structure of employment law. One is a prohibition against non-disclosure agreements where there have been allegations of workplace sexual assault or misconduct. 

Such agreements have been controversial in the past. If an employee is terminated following these allegations, and the termination settlement has included a non-disclosure agreement, both the complainant and the former employer are prohibited from discussing the matter at all. This potentially gives that employee a chance to re-offend at a future workplace – a move that the government is seeking to ban.

The government is also planning new legislation to mandate pay transparency in job postings by making it mandatory to include salaries in a posted role. They have said this is part of an effort to close the pay gap between men and women, which currently stands at roughly $0.87 cents to each dollar earned by a male counterpart. 

Final Thoughts

The changes are a whirlwind, and it can be hard for any employer to keep track! Laws also move at different stages, so the announcement of an upcoming change to the law does not mean that the law is already in place in that form, and an Act that has been passed may not be ‘in force’ until a certain date, or may give employers several months to comply with the changes.

Yet one thing is for sure – no matter what’s coming down the pipeline, we’ve got you covered. Our employment lawyers know employment issues inside and out, and we routinely help our clients throughout Cambridge, Kitchener, and Waterloo navigate both the simple as well as the complicated ones. Contact us today to set up a consultation.