To read part one, click here. Photo credit: Pexels/Anna Shvets
On March 20, 2023, Bill 79, Working for Workers Act, 2023 (“Bill 79”) was tabled.
Bill 79, if passed, would provide further protections for remote employees under the Employment Standards Act, 2000 (“ESA”) and make changes to other employment related legislation such as the Occupational Health and Safety Act (“OHSA”).
So what decisions were made on the language for the proposed amendments to the mass termination provisions of the ESA relating to remote workers?
Further to my article last week, the definition of “establishment” with respect to an employer currently is defined as a location at which the employer carries on business.
If Bill 79 is passed, this definition would be expanded to include an employee’s private residence where the employee performs work in their residence and does not perform work at another location where the employer carries on business.
This is an all or nothing approach that makes sense. Employees with hybrid work arrangements attend their employers’ traditional “establishments”.
This change is significant as employees working remotely under this proposed change in definition would be included in the count for mass terminations – meaning remote workers would not only be eligible for the same level of notice of termination as their in-office counterparts where a mass termination occurs, but also could impact the level of entitlement for all affected employees by increasing the number to trigger the mass termination rather than the individual termination provisions.
This newest version of the Working for Workers Act – Bill 79 also proposes:
Enhanced Military Reservist Leave under the ESA
Under Bill 79 the ESA would expand eligibility for reservist leave by: (a) commencing entitlement for job-protected leave after two rather than the current three-month eligibility requirement; and (b) broadening the reasons for taking the leave to include not only being trained for and/or going on a deployment as has previously been the case, but also taking time off to recover from physical injuries or mental health illnesses resulting from a deployment to a Canadian Forces operation.
This change is insightful and significant. Almost every Canadian who has had a family or friend return from deployment to a Canadian Forces operation that involved armed conflict understands the need for this addition.
For example, a medical study published in the Canadian Medical Association Journal entitled “Deployment-related mental disorders among Canadian Forces personnel deployed in support of the mission in Afghanistan, 2001–2008” found that of the 30,513 Canadian Forces personnel who began a deployment in support of the mission in Afghanistan before January 1, 2009, 13.5 per cent had a mental disorder that was attributed to the Afghanistan deployment. Posttraumatic stress disorder, coming in at 8 per cent, was the most common diagnosis.
Another published medical study “Prevalence and Correlates of Mental Health Problems in Canadian Forces Personnel Who Deployed in Support of the Mission in Afghanistan: Findings From Postdeployment Screenings, 2009–2012” found that, of the 16,193 personnel who completed post-deployment screening after return from Afghanistan, symptoms of one or more of six mental health problems were seen in 10.2 per cent of people screened; the most prevalent symptoms were those of major depressive disorder (3.2 per cent), minor depression (3.3 per cent), and posttraumatic stress disorder (2.8 per cent).
Increases to Penalties under the OHSA
Bill 79 would see amendment to the OHSA to increase its maximum fines for a corporation for a conviction from $1,500,000 to $2,000,000.
This change would give Ontario the highest maximum corporate fines under workplace health and safety legislation in Canada.
The first two amendments under Bill 79 do not cause me pause as they reflect incorporating an emerging work trend as well as an increased understanding of the human impact of deployment. The latter, the increase to OHSA penalties does cause me pause as it denotes an issue of needing to protect worker safety by increasing the business cost of sacrificing it.
Sheryl L. Johnson brings a proactive, creative, and vibrant attitude to her labour, employment and human resource law practice. Sheryl has extensive experience in representing clients in both the provincial and federal jurisdictions on all matters relating to employment and labour law, including for example construction labour law, employment related civil wrongful dismissal, human rights, and labour board litigation; privacy, governance, statutory and regulatory compliance, and executive compensation matters; as well as conducting workplace training and workplace investigations. Sheryl is also an avid educator and writer, including authoring a bi-weekly business column in The Niagara Independent and the text: Sexual Harassment in Canada: A Guide for Understanding and Prevention. Sheryl enjoys in her free time giving back to the Niagara community. She is a member of the WIN Council, Chair of the Board of Directors for the Niagara Jazz Festival, Vice-President of the Board of Directors for the YWCA Niagara Region, Secretary of Big Brothers Big Sisters of Niagara Falls Board of Directors, a board member of the Niagara Home Builders Association, and a board member of the Women in Construction group of the Niagara Construction Association.
