Digital Platform Workers’ Rights Act, 2022 and updates on other Amendments to ESA and OHSA

On February 28, 2022, Ontario introduced the Working for Workers Act, 2022, which proposes a new statute called the Digital Platform Workers’ Rights Act, 2022 (“DWRA”) and separate amendments to the Employment Standards Act (the “ESA”) and Occupational Health and Safety Act (the “OHSA”).

As you will see from the summary below, the changes are numerous and continue a pattern of increased protection for employees and paperwork and administration for employers in Ontario. Only the major amendments are covered here.

The Bill is still in first reading, but expected to pass this Spring.

Digital Platform Workers Rights

The new DWRA provides rights for individuals who perform “digital platform work”, which includes ride share, delivery, courier or other services by workers who are offered work assignment by an operator through a digital platform. Ride sharing services like Uber and Lyft and food delivery services like SkipTheDishes and DoorDash would be considered digital platform work.

The new Act gives digital platform workers the right to:

• Information about their pay etc.;
• A recurring pay period and pay day;
• A Minimum wage;
• Receive all amounts earned by the worker and 100% of all tips and other gratuities;
• Receive written notice of removal from an operator’s digital platform;
• Resolve digital platform work-related disputes in Ontario (i.e. precluding any agreement that would require adjudication or dispute resolution outside of Ontario); and
• Be free from reprisal for asserting rights under the Act.

The Act also sets out rules, processes, and requirements for record keeping, director liability, complaints and enforcement, collections, and offences and prosecutions. Digital platform workers and operators cannot contract out of the DWRA.

ESA Amendments

Exclusion for Business and IT Consultants

The latest ESA amendments will exclude business consultants and information technology consultants from the ESA if they meet the following criteria:

1. They provide services through a corporation in which they are a director or a shareholder or through a sole proprietorship;
2. There is an agreement for their services that sets out when they will be paid and the hourly amount that they will be paid is at least $60 per hour;
3. The consultant is paid the amount set out above; and
4. Any other prescribed requirements.

Business consultant is defined as “an individual who provides advice or services to a business or organization in respect of its performance, including advice or services in respect of the operations, profitability, management, structure, processes, finances, accounting, procurements, human resources, environmental impacts, marketing, risk management, compliance or strategy of the business or organization.”

Information technology consultant is defined as “an individual who provides advice or services to a business or organization in respect of its information technology systems, including advice about or services in respect of planning, designing, analyzing, documenting, configuring, developing, testing and installing the business or organization’s information technology systems.”

Workplace Monitoring

The Bill also proposes to amend the ESA to require employers with 25 or more employees to have a written electronic monitoring policy. The policy must state whether the employer electronically monitors employees and, if so, provide a description of how and in what circumstances the employer may electronically monitor employees and the purposes for which the employer may use the information obtained. Employers will be required to provide employees with a written copy of the policy.

This is similar to the obligations of employers in B.C., Alberta and Quebec, which have private sector privacy legislation but, interestingly, Ontario employees will only have a right to make a complaint if they have not received a copy of the policy. It does not create comprehensive privacy rights for employees nor will it affect or limit an employer’s ability to use the electronically obtained information.

Employers will be required to have an electronic monitoring policy within six months of the Bill receiving Royal Assent.

OHSA Amendments

The Bill proposes two amendments to the OHSA.

First, employers will be required to provide naloxone kits and to comply with related requirements if the employer becomes aware or ought reasonably to be aware that there may be a risk of a worker having an opioid overdose at a workplace or where prescribed circumstances exist.

Secondly, the amendments will increase the maximum fine for convictions under the OHSA from $100,000 to $1,500,000 for corporate directors or officers and to $500,000 for other individuals. There are also a list of factors in determining a penalty and the limitation period for prosecution is extended from one to two years.

Update on Right to Disconnect

It now appears clear that the Ontario government does not intend to mandate the content of “Right to Disconnect” policies which must be implemented by all employers with more than 25 employees by June 2, 2022. The latest guidance states only what a policy “may” address:

• The employer’s expectations, if any, of employees to read or reply to work-related emails or answer work-related phone calls after their shift is over.
• The policy may set out employer expectations for different situations. For example, the policy may contain different expectations depending on:
  • the time of day of the communication;
  • the subject matter of the communication; and
  • who is contacting the employee (for example the client, supervisor, colleague).
• The employer’s requirements for employees turning on out-of-office notifications and/or changing their voicemail messages, when they are not scheduled to work, to communicate that they will not be responding until the next scheduled work day.

The government has also stated that employers must provide a copy of the written policy to all employees within 30 calendar days of the policy being prepared or changed (if an existing policy is revised). New employees must also be provided with a copy of the written policy within 30 calendar days of being hired.

If you want more information on any of these topics, you can contact us at:

 

Geoffrey Howard:          ghoward@howardlaw.ca

604 424-9686

Sebastian Chern:            schern@howardlaw.ca

604 424-9688