What Ontario’s “Working for Workers Act, 2021” means for you

On December 2, the “Working for Workers Act, 2021” became law in Ontario. The Act received news coverage as the first of its kind in enforcing an employee’s right to disconnect. It also bans non-compete agreements, enforces the mandatory licensing of recruiters, offers protection to immigrants during the recruitment process, and more.

The rationale for the law is to help employees disconnect from their office and provide a better work-life balance at a time when the lines between work and home are becoming increasingly blurred.

We’ve summarized the most significant changes below.

1. You now must enforce your team’s right to disconnect

“An employer that, on January 1 of any year, employs 25 or more employees shall, before March 1 of that year, ensure it has a written policy in place for all employees with respect to disconnecting from work.[…]”¹

The Act defines “disconnecting from work” as “not engaging in work-related communications, including emails, telephone calls, video calls or the sending or reviewing of other messages, so as to be free from the performance of work.”²

What this means for you

• Companies with 25 or more employees must have a written policy outlining expectations on how employees disconnect from work. This policy needs to include the date it was prepared and the date any changes were made to the policy.
• The policy must be shared with employees at least 30 days prior to coming into effect and will need to be shared with every new employee within 30 days of being hired.
• The legislation states that the policy must be in place by March 1^st of each year. However, as this year is the first instance the law comes into effect, companies have until June 2, 2022 to have their policy ready.
• What should be included in the policy? That’s not entirely clear. The government still needs to outline that. We’ll send you an update once we have more. In the meantime, you might want to consider/research:
• Withholding the delivery of internal work emails outside work hours and creating an automated reply to external emails explaining the company’s policy (as well as what to do in case of emergency).
• Informing customers and suppliers of the Act and the actions the company will take to be compliant.
• Withholding notifications from work-related apps outside work hours.
• Training employees on the new policy. (tip: try using the Training module in Collage HR! Here’s how.)

2. You can no longer enforce non-compete agreements

“No employer shall enter into an employment contract or other agreement with an employee that is, or that includes, a non-compete agreement.”³

A non-compete agreement is defined as “an agreement, or any part of an agreement, between an employer and an employee that prohibits the employee from engaging in any business, work, occupation, profession, project or other activity that is in competition with the employer’s business after the employment relationship between the employee and the employer ends.”⁴

What it means for you

• As of December 2, 2021, companies regulated by the “Employment Standards Act, 2000” can no longer prevent employees from joining a competitor after leaving. On the flip side, it also promotes the mobility of labour and will enable companies to recruit talented individuals with highly relevant experience.
• Companies should adjust employment contracts accordingly to remove any non-compete clauses.
• Companies should revise Non-Disclosure Agreements (NDA) to ensure it protects the organization’s proprietary information.
• It’s not clear whether contracts made prior to December 2, 2021 are still enforced. In the absence of such language, non-competes may still be valid.

3. In 2024, “Temporary Help Agencies” and Recruiters must be licensed

There are two parts to this one:

• “No client shall knowingly engage or use the services of a temporary help agency unless the person who operates the temporary help agency holds a licence[…]”⁵
• “No recruiter, employer or prospective employer shall knowingly engage or use the services of a recruiter unless the recruiter holds a licence[…]”⁶

The Act starts by stating that Temporary Help Agencies and Recruiters can not operate without a licence. However, it also clearly states that companies can not knowingly engage them, thus putting the responsibility on both parties.

What it means for you

• No action yet as the infrastructure needed to provide licenses will likely only be in place just prior to 2024.⁷
• In future, companies will need to ask for a copy of the license and check it against a registry prior to contracting.

4. You can’t use recruiters that charge fees to the talent being placed

“No recruiter or employer shall, in connection with the recruitment or employment of a foreign national, knowingly use the services of a recruiter who has charged a fee to a foreign national[…]”⁸

What it means for you

• Note that a company may incur penalties for not complying with the legislation.
• Companies should review their recruiter’s Contractor Agreement to enforce compliance with the legislation.
• Add a question to your interview process asking candidates if they had to pay a fee to the recruiter.

5. Workplaces must provide washroom access

“The owner of a workplace shall ensure that access to a washroom is provided, on request, to a worker who is present at the workplace to deliver anything to the workplace, or to collect anything from the workplace for delivery elsewhere.”⁹

Access to a washroom at a workplace is not required:

• if providing access is not reasonable or practical to the health or safety of the workplace;
• if providing access is not reasonable due to the nature of the workplace, security, or location of the washroom within the workplace; or
• if the washroom is in, or can only be accessed through, a dwelling.

6. Amendment to the “Workplace Safety and Insurance Act, 1997”

“Distribution of surplus: If the amount of the insurance fund meets a sufficiency ratio that is equal to or greater than 115 per cent and less than 125 per cent, the Board may distribute any amount in excess of the amount prescribed that it considers appropriate among Schedule 1 employers[…]”¹⁰

What it means for you

• If you are a Schedule 1 employer, the company may receive a rebate from the Workplace Safety and Insurance Board (in the event of a surplus).

7. Removing Canadian experience as a condition of employment for regulated professions

“A regulated profession shall not require as a qualification for registration that a person’s experience be Canadian experience, unless an exemption from the prohibition is granted by the Minister [of Citizenship and Immigration] for the purposes of public health and safety[…]”¹¹

What it means for you

• Companies recruiting for a position in a regulated profession (see list from the “Fair Access to Regulated Professions and Compulsory Trades Act, 2006”), may eventually have access to more candidates and be able to consider foreign nationals.

This article is a summary of parts of the law. It does not replace legal advice tailored to your specific circumstances.

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