How Does the Working for Workers Five Act, 2024 Affect Your Workplace?

Written by Abigail Knubley & Rosalie Springer

The Employment Standards Act, 2000 (ESA) and the Occupational Health and Safety Act (OHSA) are changing, and employers need to change with it. Ontario’s Working for Workers Five Act, 2024 (Bill 190) introduced several amendments. We will help you get a grasp on your new responsibilities, and show you how these changes will impact your workplace.

Employment Standards Act. 2000:

These amendments to the ESA came into force on October 28, 2024:

• Sick leave evidence: The ESA provides employees with the right to three unpaid sick days per year. Employers are now prohibited from requiring employees to provide medical notes to show their entitlement to these three days.
• Fine increase: The maximum fine for an individual person who is convicted of violating the ESA has increased from $50 000 to $100 000, making it the highest in Canada.

These amendments will take effect on a date to be announced:

• Job posting information: Employers advertising job postings must include whether the position is for an existing vacancy or for future hiring needs.
• Communication with interviewees: Employers who interview applicants for publicly advertised positions must respond to interviewees within a specified period.

Recommendations for employers:

Ensure that your sick leave policy complies with the new requirement regarding medical notes. And consider that while employers can’t request a medical note for an employee’s first three unpaid sick absences, they are still allowed to request evidence that is reasonable in the circumstances. This may include, for example, a copy of a prescription, a receipt for over-the-counter medicine, confirmation of an appointment, or employee attestation.

These three sick days also do not need to be used consecutively. For example, if an employee uses one ESA unpaid sick day in January, another in March, and a third in August, the employer can’t ask for a sick note for any of these three absences. If the employee then takes a fourth sick day in October, it is our understanding that the employer would be able to request a sick note from a health practitioner, as this would no longer fall under the ESA’s sick leave. Employers can also likely still ask for medical documentation for Human Rights Code purposes, for example, if an employee is requesting accommodation or a medical-related leave that doesn’t use the ESA sick days.

You should also ensure that your organization’s policies reflect the new job posting requirements (that are not yet in force, but will be on a future date). The Working for Workers Act Four, 2024 added additional changes regarding job postings that have also not yet come into force, which you should consider during your policy review. These requirements include:

• posting information about expected compensation
• if artificial intelligence was used in the creation of a job posting, being open about that in the posting itself
• not requiring Canadian experience in a posting

As these are important changes that will affect employer job postings, we recommend updating your policies soon so that you have them ready to go. Robert Richler provides some additional tips in his article on the topic.

Occupational Health and Safety Act:

Several amendments to the OHSA took effect on October 28, 2024. One of the most important changes was that the definitions of “workplace harassment” and “workplace sexual harassment” have been updated to explicitly include acts conducted “virtually through the use of information and communications technology.” Other changes include:

• Definitional additions:
  • The OHSA now provides that it applies to telework performed “in or about a private residence,” although an office in a private residence or home is excluded from the definition of an “industrial establishment.”
  • “Electronic postings” must fulfil the following requirements: (1) employees have been provided with direction on where and how to access the information and (2) the information posted can be readily accessed by workers in the workplace.
• Employers are now able to post this information in a readily accessible electronic format rather than in the physical workplace:
  • The names and work locations of joint health and safety committee members.
  • The annual summary of data relating to workplace safety incidents.
• Joint health and safety committee meetings: these meetings may now occur virtually.

This amendment will take effect on a date to be announced:

• Washroom cleanliness: Employers must maintain washroom facilities provided for workers in a “clean and sanitary condition,” and keep records of cleaning activities.

Recommendations for employers:

Update your internal harassment policies to reflect the new change regarding virtual harassment. While virtual acts were already considered harassment based on case law, it’s a significant step forward to have these types of actions explicitly mentioned within the OHSA.

In the near future, you should also consider developing a policy on washroom cleanliness if you provide washroom facilities for your employees, and include how your workplace will best be able to keep records of cleaning activities.

If you have any questions about how the Working for Workers Five Act, 2024 will affect your workplace, or you need help ensuring that your policies are up to date, contact a lawyer at Bernardi, and we will be happy to assist.

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