* This article is general in nature: it is not an exhaustive summary of the topic and does not constitute legal or other professional advice. Readers are encouraged to consult the relevant legislation and legal counsel for further guidance.

On October 28, 2024, the Ontario government’s Working for Workers Five Act (“WfW5”) received royal assent. WfW5 is the fifth in a series of employment-related bills passed by the government, in part to address the changing nature of work, including the increased prevalence of remote work.

This article provides tips to help your organization remain compliant with WfW5’s newly in-force provisions. Note that provisions that are not yet in force are subject to additional regulations or exceptions as may be prescribed by the government at a later date.

Employment Standards Act, 2000 (the “ESA”)

Sick Notes

Employers are now prohibited from requesting a medical note from a “qualified health practitioner” (e.g., a doctor, registered nurse, or psychologist) when an employee requests any of the 3 annual days of sick leave they may be entitled to under the ESA. (Note that such sick leave can be provided on an unpaid basis.)

Employers can still, however, (1) ask for “evidence reasonable in the circumstances” that the employee is entitled to sick leave under the ESA; and (2) request medical notes: (a) for sick leaves longer than 3 days; or (b) where employees have used up the 3 days of ESA sick leave in a calendar year.

Tip: Review Attendance Policies
Review your attendance policies and employee handbooks to ensure that you do not require that employees provide a note from a doctor or other qualified health practitioner for the first 3 sick days in each calendar year. If your organization wants to require that employees provide some evidence of entitlement for such absences, consider in advance what evidence would be “reasonable” in the circumstances, such as copies of prescriptions, proof of hospital admission, or an attestation.

Occupational Health and Safety Act (the “OHSA”)

Remote Work

The OHSA now specifies that it applies to “telework” performed in or about a private residence (i.e., remote work from home); provided that residences cannot constitute an “industrial establishment” within the meaning of the OHSA.

Tip: Ensure Compliance for Remote Work
If your organization has not already done so, take this opportunity to ensure that your organization is meeting its responsibilities under the OHSA with respect to work performed at home. This may include modifying workplace policies to address typical hazards that may be present in a home and, as necessary, performing workplace safety investigations in the event of an injury or illness that arises while an employee is working from home.

Virtual Harassment

The OHSA’s definitions of “workplace harassment” and “workplace sexual harassment” are amended to include virtual harassment via the use of information and communications technology. Note that the prior definitions were broad enough to already encompass virtual harassment, so this amendment is unlikely to have a significant practical effect on employers’ obligations.

Tip: Update Harassment Policies
Notwithstanding that this change likely amounts to a clarification or confirmation of existing OHSA principles, employers should consider updating internal policies to specifically reference virtual harassment. This can also be a good excuse to remind employees of the requirements under these important policies, including so that they understand how to report virtual harassment.

Electronic Postings

The OHSA now provides that, with respect to certain mandated postings, information may be posted in a “readily accessible electronic format” as long as the employer provides employees with direction on where and how to access the information and the information is in an electronic format that can be readily accessed by workers in the workplace. Such information includes copies of OHSA, any explanatory OHSA material, and a copy of any of your organization’s occupational health and safety policies.

Tip: Provide Guidance on Electronic Postings
Ensure that your organization specifically provides guidance on both where and how to access OHSA postings that are posted electronically – and ensure that workers can easily access these postings in the workplace. A shared drive or workplace intranet are possible posting locations, provided the employer can demonstrate that employees were made aware of where and how to access these materials.

Virtual JHSC Meetings

Joint Health and Safety Committees are now permitted to meet virtually under the OHSA. This clarification may make scheduling regular committee meetings easier and more convenient.

Washroom Facilities (Not in Force)

Employers and constructors will be required to ensure that washroom facilities are maintained in a clean and sanitary condition and that records of cleaning and maintenance are kept and made available as prescribed.

Conclusion & Future Changes

Employers should monitor for the coming-into-force of additional changes under the WfW5, including new rules regarding:

  • the content of job postings;
  • information that must be provided to job applicants (including prohibitions on “ghosting” candidates); and
  • requirements regarding clean and sanitary washrooms (and related record-keeping requirements).

Staying compliant with the WfW5 requires action in response to the new and pending legal requirements, which includes updates to some of your organization’s policies and procedures. The tips in this article will help you get started.

Additional Resources

For more detailed information on the changes now in effect as a result of WfW5, please see information provided in the articles linked below.

Bill 190, Working for Workers Five Act, 2024 Receives Royal Assent

Ontario’s Working for Workers Five Act, 2024 is Now Law – Here’s What Employers Need to Know

Ontario’s Working for Workers Five Act, 2024 Receives Royal Assent

Five Bills In: What Employers Need to Know About Ontario’s Latest Working for Workers Act