Changes reflect 'increasingly digital work practices' and 'practical reality that remote work is here to stay,' says employment lawyer
With Ontario’s recent Working for Workers Five Act becoming law, the province is implementing a suite of updates intended to modernize safety and transparency standards in workplaces that are increasingly remote or hybrid.
The new regulations address critical areas such as telework safety, electronic postings, digital harassment, and job posting transparency.
For HR professionals, these changes bring new compliance requirements and the need to adapt policies to meet updated health, safety, and hiring expectations.
Expanding health and safety to remote work
One of the most significant updates under the Working for Workers Five Act expands Ontario’s Occupational Health and Safety Act (OHSA) to cover telework performed in private residences: “This Act applies to telework performed in or about a private residence or the lands and appurtenances used in connection therewith.”
Now in force, this new rule “is the most significant change” in the new legislation, providing a level of protection that recognizes the realities of today’s work environments, according to Duncan Burns-Shillington, labour and employment lawyer at DLA Piper covering Ontario and B.C.
“These changes [are] being implemented in response to the increasingly digital work practices we’re seeing and the practical reality that remote work is not a trend, but here to stay.”
Employers have a general duty to take every precaution reasonable under the circumstances for the protection of the worker, and now that includes employees who are performing work in their private residence, he says.
“It's unclear at this time how these specific duties are going to apply to teleworkers, or how the employer is expected to discharge this general duty in a work setting it doesn't necessarily control.
“But I believe frequent check-ins are certainly going to be a practice that's going to be recommended, and other provinces have similar requirements for when an employee is working alone or in isolation.”
Addressing digital harassment
Alongside remote work safety, the Working for Workers Five Act introduces a broadened definition of workplace harassment and workplace sexual harassment to include digital interactions. This change aims to address virtual forms of harassment that may occur in online meetings, emails, or other digital communications, extending harassment policies beyond physical spaces.
And this change is now in force.
Burns-Shillington highlights that this update necessitates revisions in employer policies and training.
“There’s an ongoing obligation to train your employees on the requirements of your workplace harassment policy, so I think that would need to be shared with the employees and make sure they understand the expanded scope of the definition… and what kinds of conduct might be captured by it.”
Streamlined sick leave policies
Ontario’s Working for Workers Five Act also removes the requirement for employees to submit a doctor’s note for the first three unpaid, job-protected sick days each year under the province’s Employment Standards Act.
“An employer shall not require an employee to provide a certificate from a qualified health practitioner as evidence,” says the legislation, but “an employer may require an employee who takes leave under this section to provide evidence reasonable in the circumstances that the employee is entitled to the leave.”
Importantly, the sick note requirement removal applies only to the initial three days of protected sick leave — employers may still request additional documentation if the exceeds the statutory three days, says Burns-Shillington.
“An employer is still able to request other evidence of entitlement… the only sort of example provided by the government was an attestation can be requested. Anything beyond that is up to employers to figure out at this point,” he says, adding that this won't impact requiring other evidence, including doctors’ notes, in the case of longer absences.
It’s clear that the government doesn’t want employees to be required to go to the doctor every time they're sick, to try and ease up the pressure on doctors, says Paul Broad, labour and employment lawyer at Hicks Morley in Toronto, adding the change is relatively straightforward.
“Certainly, employers are going to have to look at their policies and their practices,” he says. “I'm guessing a number of employers may not ask for the first few days anyways, and then those who do, they're going to have to… assess their practice in light of these rules.”
Job posting transparency
In response to concerns over misleading job postings, Ontario’s latest Act also includes a requirement — not yet in force — for employers to disclose whether a publicly advertised job posting is for an “existing vacancy” or merely to build a talent pipeline.
“They don't have to prove there's a vacancy, the obligation is you have to disclose whether there's a vacancy in publicly advertised job posting,” says Burns-Shillington.
Additionally, the Act will require that employers follow up with candidates after interviews with “prescribed information,” preventing the common practice of “ghosting” applicants.
“We don't know what that prescribed information is. What we anticipate it as being is you're going to have to inform the applicant whether the position was ultimately filled or not, so... you can no longer ghost the applicant,” he says.
Greater transparency in hiring process
In the government’s consultation paper on the job posting rules, they talk about the importance of sharing information “to provide for greater transparency in the hiring process and allow individuals who put in the time and effort to interview to not be left in limbo without any knowledge of the outcome.”
The government also asks whether 30 calendar days is a reasonable amount of time for an employer to be required to follow up with an interviewee: “If not, how long does it typically take after interviews are completed for a hiring decision to be made?”
There are some fairly open-ended questions in the paper, says Broad: “It’s not really detailed.”
But one aspect that’s notable is the requirement to maintain records for three years, he says.
“This will be around job postings and will require preparation and making sure that you've set up your system to actually do that and to make sure that you've maintained the appropriate records.”
The overall changes around job postings are among several new rules that include pay transparency and compensation range information, prohibitions on requiring Canadian experience, and identifying if you use artificial intelligence in processing your job application, says Broad.
“It will involve more work for employers, there's no question about that — they'll have to be doing things that they may not have been doing before, and be probably a little bit more formalized in some of their processes.”
Changes to OHS meetings, information
Another key update under the Act allows greater flexibility for health and safety meetings, which are now permitted to be held virtually. Previously, Ontario law required these meetings to take place in person, but the new rule reflects the reality that many employees are now working remotely or in hybrid settings.
Employers are also permitted to post mandatory health and safety information electronically, provided it is accessible to employees.
Burns-Shillington notes that while the Act provides more options for electronic postings, employers should ensure that information remains conspicuous and accessible.
“The obligation is to ensure that information is posted in a conspicuous place in the workplace… various formats would be a best practice.”
Higher fines for compliance failures
Ontario has also doubled the maximum fine for serious violations of the Employment Standards Act to $100,000, now the highest in Canada.
Burns-Shillington points out that while the fine applies per incident, it is generally reserved for “serious incidences” or a pattern of non-compliance.
The government has historically tended to hold the bigger fines for truly bad actors, says Broad.
“I'm not sure that it would be a big issue for an employer that makes a mistake; for example, versus one who's ignoring government orders and things like that.”
