A number of changes to employment standards legislation introduced by the Ontario government prior to the May election call have created some confusion among employers.

Link2Build hosted a special webinar on May 18 where employment lawyers Matthew Badrov and Jeremy Ambraska of Sherrard Kuzz LLP unpacked the myths – and the truths – behind these changes.

The Working for Workers Act, which passed in separate elements in December and February, contains a number of important changes to workplace legislation. One of the main elements, and one often misunderstood, is the so-called “right to disconnect” provision that would allow employees to stop communications for work purposes at the end of the work day.

Certainly, Badrov said, the spirit of the legislation is to allow employees to take time away from their work days – especially as the temptation, and often the expectation, is for workers to be monitoring their emails from their home offices. The reality, however, is different.

“It’s not a right to disconnect at all,” said Badrov. “That notion was picked up in the media and people ran with it. The law requires employers with 25 or more employees to adopt a written policy that says they will follow policies described in the Employment Standards Act. It specifically does not provide a right for the employee to disconnect from work and be free from the obligation to engage in work-related communications.”

The policy includes expectations for workers to disconnect from work and for employers to respect employees’ work-life balance, but, said Badrov, given the nature of an employee’s duties, there may well be expectations that this person will be required to work outside regular business hours.

Employers must have their disconnecting policies in place by June 2.

The Working for Workers Act also contained a requirement that large employers – companies with at least 25 employees – disclose whether they monitor employee activities electronically, and if so, how they monitor workers and under what circumstances. In the construction industry, Ambraska suggested, this could extend to tracking via cell phones, vehicle GPS systems, smart phone apps, and more.

“This isn’t a prohibition on electronic monitoring at all,” said Ambraska. “It’s more about putting employees on notice that this kind of thing is happening, how it’s happening and why.”

Most employers will have until October to implement their electronic monitoring policies.

The Working for Workers Act also takes aim at non-compete agreements between employees and employers – although any ban it introduces is far from complete. Badrov explained that courts have traditionally taken dim views on the enforceability of non-compete agreements, allowing them in only very rare circumstances. The new legislation states that workers and companies may not enter into contracts with non-compete agreements, except for two cases. The first is with executive employees, such as chief operating officers or chief executive officers. The other is if the non-compete agreement is part of the sale or lease of a business.

“Instead of asking key employees to sign non-compete agreements, there are alternate methods you can use to protect your company resources,” Badrov said. “Non-solicitation clauses that pertain to customers, clients and potential clients are helpful. So are confidentiality clauses to protect trade secrets or intellectual property.”

Finally, the new provincial legislation includes a number of changes to the Occupational Health and Safety Act (OHSA), including dramatically higher fines for violations. Fines rise from a maximum of $100,000 to $1.5 million for directors or officers of corporations and to $500,000 for other individuals. The new fines come into effect on July 1.

The changes also set out a list of aggravating factors that the courts will use when determining a penalty, including whether the offence resulted in a workers’ death, serious injury or illness, whether the defendant committed the offence recklessly or disregarded an order of an inspector, whether the defendant has been previously convicted of an offence under the OHSA, and whether the defendant lacks remorse.

As well, the limitation period for starting a prosecution is extended from one year to two.

Finally, the OHSA amendments require certain workplaces to include naloxone kits on site where there may be a risk of a worker having an opioid overdose, or if the employer becomes aware of this risk or ought to know of any risk.

It’s no secret that construction faces its own opioid epidemic, and the industry has been specifically singled out by the government for requiring these kits on site. The good news is, the kits are free to obtain, and training is available from the province at no charge, but the requirement to have the kits on the jobsite, and the logistics of deploying them – and training workers to use them – may be complicated.

The legislation does not yet specify when the naloxone kits will be required on sites, but Ambraska was clear in his recommendation: start working toward this requirement.

“Employers have what’s called a duty to inquire about employee well-being when it comes to drug or alcohol use,” he said. “I liken it to this: you don’t need to be a mechanic to suspect something is wrong with your car. You also don’t need to be a doctor or a counsellor to suspect something is wrong with an employee. That duty to inquire is how you know, or should know, that there may be a risk of opioid use on your construction site.”

Link2Build has uploaded a recording of the webinar to watch at any time.