Bill 88: Working for Workers Act, 2022 Receives Royal Assent

On April 11, 2022, Bill 88, the Working for Workers Act, 2022 received Royal Assent.  Bill 88 makes a number of changes to the Employment Standards Act and the Occupational Health and Safety Act.  Notably, Bill 88 also establishes the Digital Platform Workers’ Rights Act 2022, which creates rights for digital workers, also known as “gig workers.”  The highlights of these changes are reviewed below.

Changes to the Employment Standards Act (“ESA”)

Bill 88 introduces a new requirement that employers with 25 or more employees have a written policy about electronic monitoring.  This policy must inform employees whether they are being electronically monitored, and if so, the circumstances of when this monitoring takes place, and the purpose for which the employer is gathering this information.  Employers will have until October 11, 2023 to put their policies in place.  Employers with 25 or more employees as of January 1st of any subsequent year will have until March 1st of that year to comply with the requirement.

Bill 88 also expands job-protected reservist leave under the ESA.  As of April 11, 2022, employees are eligible for time off to participate in Canadian Armed Forces military skills training after being employed for 3 consecutive months.  Previously, reservist leave was limited to deployments, and employees were required to be employed with their employer for at least 6 consecutive months before they would qualify for the job-protected leave.

Creation of the Digital Platform Workers Rights Act, 2022

The new Digital Platform Workers Rights Act creates rights for individuals working on or through a digital platform. “Digital platform work” is defined in the Act as the provision of for payment ride share, delivery, courier or other prescribed services by workers who are offered work assignments by an operator through the use of a digital platform.

In many respects, the new Act parallels the ESA with similar oversight and minimum standards.   The following worker rights and obligations are codified in the Act:

• the right to information, including with respect to remuneration, work assignments, and performance ratings;
• the right to a recurring pay period and pay day;
• the right to minimum wage for each work assignment performed by the worker;
• the right to amounts earned by the worker and to tips and other gratuities;
• the right to notice of removal from an operator’s digital platform;
• the right to resolve digital platform work-related disputes in Ontario; and
• the right to be free from reprisal for exercising rights under the Act.

This Act will come into force on a date still to be determined.

Changes to the Fair Access to Regulated Professions and Compulsory Trades Act, 2006

Bill 88 also enacts the new Fair Access to Regulated Professions and Compulsory Trades Act, 2006.  This Act establishes timelines within which regulated professions must respond to applications for registration from domestic labour mobility applicants, unless an exemption is granted.  A “domestic labour mobility applicant” means an individual who has applied for registration by a regulated profession in Ontario and is currently registered with a body that regulates the same profession in a Canadian province or territory other than Ontario.  These new timelines will come into force on a future date to be determined.

Changes to the Occupational Health and Safety Act (“OHSA”)

Bill 88 also amends the Occupational Health and Safety Act by requiring employers to have a naloxone kit ready and available if the employer becomes aware, or ought reasonably to be aware, that there may be a risk of a worker having an opioid overdose in the workplace.

Perhaps most notably for employers, the maximum applicable fines for violations of the OHSA will also be dramatically increased from $100,000 to $1,500,000 for directors and officers of a corporation, and from $100,000 to $500,000 for other individuals.  In addition, the limitation period for instituting health and safety prosecutions will be extended from 1 year to 2 years.

Bottom Line for Employers

Bill 88 imposes new rights for workers, new obligations for employers, and expands potential liability for workplace health & safety issues.  For more information about Bill 88, advice on how to implement the Bill’s requirements, or assistance with drafting an electronic monitoring policy, please contact a member of our Employment Law Group.