New regulations introduced in 2022 to protect employee rights

By Tony Poland, LegalMatters Staff • Employers in Ontario faced another busy year dealing with new government regulations intended to define and protect workers’ rights, says Toronto-area employment lawyer Brittany Taylor.

Taylor, a partner at Rudner Law, says updates to various employment legislation, including changes to the Employment Standards Act, 2000 (ESA), are intended to make workplace practices more transparent and require clarity on employer expectations. 

“It is important to remember that the purpose of the ESA and other employment-related legislation is to protect employees. Employment law is generally not there to protect employers, although there are some exceptions to that,” she tells LegalMattersCanada.ca. “But, by and large, when we are talking about employment law, we really are talking about regulations intended to make life better for the employee.”

Taylor says there were some notable labour law changes in 2022.

On July 1, fines for breaching the Occupational Health and Safety Act (OHSA) were increased from $100,000 to $500,000 for an individual violator.

‘It is a pronounced warning to employers’

“A new fine up to $1.5 million was introduced specifically for directors and officers of a corporation,” Taylor says. “That was a pretty significant change. It is a pronounced warning to employers that health and safety is paramount and that the government is taking breaches of health and safety legislation very seriously.”

At the end of July, the deeming provisions of the Infectious Disease Emergency Leave  (IDEL) under the ESA ended.

Under IDEL, a nonunionized worker whose hours were reduced or eliminated because of the coronavirus was deemed to be on job-protected unpaid leave rather than on a temporary layoff, which has established time limits.

With this change, an employee can no longer be deemed to be on IDEL if their employer sends them home for reasons related to COVID-19. However, employees may still elect to take IDEL where the criteria for this leave is met.

One new requirement under the OHSA that seemed to receive little fanfare requires a business owner to ensure that access to a washroom is provided to delivery persons and couriers who are attending their workplaces, says Taylor.

“That is an indicator of the changing times in the employment world,” she says. “There are so many more people working in the gig economy. This type of requirement may seem a bit odd, but it is important to ensure that workers performing these types of services are protected.”

Two changes were commonly misunderstood

The two biggest changes to the ESA in 2022 were also the most commonly misunderstood, says Taylor.

“The new requirements for certain employers to have a disconnecting from work policy and an electronic monitoring policy, introduced in the Working for Workers Act, 2021 and Working for Workers Act 2022 respectively, received a great deal of attention. The media really latched onto them,” she says. “But there was a problem in the way these policies were portrayed. They do not actually say what the general public seems to think.” 

Taylor says the “biggest misconception” was that the regulations created new entitlements for employees. 

“The only thing that they do is impose some new requirements on employers with respect to having policies and being open and honest with employees,” she says. “It is not the intention of these new requirements to restrict employers from doing anything that they were doing before. It is more about employers being upfront about what they are doing.”

Many workers were under the impression that the new disconnecting from work requirements gave them the unquestioned ability to sign off at the end of the workday and refuse to answer emails, Taylor says.

“I am actually still getting calls from employees saying their employer breached their “right to disconnect” by emailing them at 7 p.m.,” she says. 

Employer only required to have a policy

However, that was not the intention of the changes to the ESA, says Taylor. Instead, all the new requirement does is require employers to have a right-to-disconnect policy, she says.

“And what that policy has to include is actually really limited,” Taylor explains. “The only requirements are that it sets expectations on when an employee can disconnect from work, In other words, it tells employees what those expectations are, as well as the date the policy was prepared and the date any changes are made. That’s it.”

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She says the government provided guidance on things employers could consider addressing in their disconnecting from work policies, such as reading and replying to emails after the regular work day is over or when to turn on your out-of-office alert. However, these are simply recommendations, not requirements, and employers have a lot of discretion in terms of what their disconnecting from work policy includes.

‘Other than clarifying expectations, nothing has changed’

“Other than clarifying expectations, nothing has changed,” Taylor says. “The hours of work provisions in the ESA still provide protection to employees with respect to having time off from work or time between shifts.”

The electronic monitoring policy “was also very misunderstood,” she says.

“Employers were panicking that this is going to limit their ability to electronically monitor employees. And employees were thinking they were suddenly getting all sorts of new privacy rights,” says Taylor. “It does not do either of those things.

“Again, the only thing that this policy requires is disclosure,” she adds. “A company must disclose whether they are electronically monitoring their employees and, if so, a description of how and in what circumstances they are doing this monitoring along with the purposes for which any data or information obtained might be used.”

Taylor says it is all about transparency. “One of the key things employers must know is that this rule applies to all monitoring regardless of where it occurs,” she says. “Even if they install keystroke tracking software on the laptop of an employee who is working from home, that would still count as electronic monitoring in the workplace. That needs to be reflected in their policy.”

The other important aspect to consider is that electronic monitoring is broadly defined, Taylor says.

“We are not just talking about email monitoring software. We are also talking about the old school forms of electronic monitoring such as security cameras and recording equipment on phones,” she says. “Even the swipe card to get in and out of a building is a form of electronic monitoring. It is essential that employers ensure they are capturing all forms of monitoring that may be present in the workplace when drafting their policies.

Policy is required in all circumstances

“Employers should also be aware that even if they do not do any electronic monitoring, they are still required to have a policy that states that.”

Taylor says the new rules are an opportunity for employers to reevaluate their current practices and examine why they are monitoring their workers and how they are using that information.

Both new policy requirements only apply to companies with 25 or more employees as of Jan. 1 of any given year, she notes, so employers need to reassess their workforce annually to ensure they are in compliance. 

Taylor says because the two biggest changes to the ESA are really more about transparency as opposed to substantive changes, some might wonder about the motivation for the amendments.

“It is easy to look at this and say they were only introduced because it was an election year and the government wanted to have something to say they were protecting workers,” she says. “But if we take off our cynical goggles, we do really see a direction of transparency. 

“The government is not heavy-handedly changing employer processes, they just want companies to be more open with their employees about what they are doing,” Taylor adds. “These are helpful policies for employees and for employers. It opens the closed door and allows everybody to understand what is expected.”

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