Bill 88, Working for Workers Act, 2022, Passes

On April 11, 2022, Bill 88, Working for Workers Act, 2022, received Royal Assent and is now law. Bill 88 enacts the Digital Platform Workers’ Rights Act, 2022 and makes amendments to the Employment Standards Act, 2000, the Occupational Health and Safety Act and the Fair Access to Regulated Professions and Compulsory Trades Act, 2006.

In this FTR Now, we highlight the key legislative changes introduced by Bill 88 and identify the dates on which the new provisions come into force.

Written Policy On Electronic Monitoring

Bill 88 amends the Employment Standards Act, 2000 (ESA) to require employers with 25 or more employees on January 1 of each year to have a written policy in place regarding electronic monitoring of employees by March 1 of the same year.

A transitional provision gives employers with 25 or more employees on January 1, 2022 until October 11, 2022 (six months after Bill 88 received Royal Assent) to comply with this new requirement.

The policy must include certain information, including:

whether the employer electronically monitors employees and, if so,
- a description of how and in what circumstances the employer may monitor employees, and
- 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
such other information as may be prescribed.

At the time of writing, no additional information regarding the content of the policy has yet been prescribed. We will monitor for that information and provide any updates should they become available.

Increased Penalties Under the Occupational Health and Safety Act (OHSA) and More

On July 1, 2022, the following amendments to the OHSA will come into force:

The fines for a contravention of the OHSA by a person are increased to a maximum of $500,000 (from $100,000).
A new penalty is created for directors or officers of a corporation who do not take reasonable care to ensure that the corporation complies with the OHSA and related orders. On conviction, directors and officers are liable to a fine of not more than $1,500,000 or to imprisonment for a term of not more than 12 months, or both.
For the purpose of determining the appropriate penalty under the OHSA, the Bill provides for aggravating factors that must now be taken into account. For example, it will be considered an aggravating factor if, in committing the offence, the defendant was motivated by a desire to increase revenue or decrease costs, or if the offence resulted in the death, serious injury or illness of one or more workers.
The limitation period for instituting prosecutions under the OHSA is increased to two years (from one) from the later of the date of the occurrence and the day the inspector becomes aware of the alleged offence.

The OHSA is also amended to require employers who become aware or ought reasonably to be aware that there may be a risk of a worker having an opioid overdose in the workplace to provide a naloxone kit in the workplace. The naloxone kit must be in the charge of a worker who has been trained on recognizing an opioid overdose and how to administer naloxone. This provision comes into force upon proclamation.

The amendments signal a desire to hold individuals more accountable for their actions with respect to health and safety in the workplace, with the potential for greater penalties when violations of the OHSA are found. Further, the increase to the limitation period means a longer period of uncertainty for workplace parties regarding whether charges will be laid, and an even greater period of time before a possible trial or resolution.

A New Digital Platform Workers’ Rights Act, 2022

Bill 88 enacts a new statute, the Digital Platform Workers’ Rights Act, 2022, which establishes a number of rights for digital workers, such as the right to minimum wage, the right to resolve digital platform work-related disputes and the right to be free from reprisal, among other things. While digital workers who are engaged as employees fall within the protections of the ESA (and will continue to do so), the new Act will apply to any person engaged as a digital worker, including those engaged as contractors.

This Act will come into force upon proclamation.

Other Amendments of Note

Bill 88 introduces the following amendments to the ESA:

As of January 1, 2023, the ESA will not apply to certain business and information technology consultants (as those terms are defined).
The service eligibility requirement for reservist leave under the ESA is shortened to three months (from six). This amendment came into force on Royal Assent, or April 11, 2022.

Bill 88 also amends the Fair Access to Regulated Professions and Compulsory Trades Act, 2006 to require regulated professions to respond to applications for registration from domestic labour mobility applicants (as defined) within specified timelines, among other things. Subject to exceptions, these amendments come into force upon Royal Assent.

For a more detailed discussion of the foregoing amendments, see our FTR Now of March 2, 2022, Ontario Introduces Bill 88, Working for Workers Act, 2022.

Please reach out to your regular Hicks Morley lawyer should you have any questions about the changes introduced by Bill 88.

The article in this client update provides general information and should not be relied on as legal advice or opinion. This publication is copyrighted by Hicks Morley Hamilton Stewart Storie LLP and may not be photocopied or reproduced in any form, in whole or in part, without the express permission of Hicks Morley Hamilton Stewart Storie LLP. ©

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