As outlined in our November 25, 2021 newsletter, the Government of Ontario recently introduced the Working for Workers Act, 2011 (the “Act”), which makes amendments to the Employment Standards Act, 2000 (the “ESA”). The Act received Royal Assent on December 2, 2021, making the changes to the ESA official. The Act introduces a number of amendments to the ESA, but most widely applicable is the requirement for employers to implement disconnecting from work policies and the prohibition on non-compete agreements.
Disconnecting from Work Policies
The Act requires employers that, on January 1 of any year, employ 25 or more employees to have a written policy with respect to disconnecting from work before March 1 of that year. The policy must include the date the policy was prepared and the date any changes were made to the policy. The term “disconnecting from work” is defined to mean not engaging in work-related communications, including emails, telephone calls, video calls or the sending or reviewing of other messages, so as to be free from the performance of work. The Act does not yet mandate what would be specifically required in the policy, but it could include, for example, expectations about prolonged response time for emails and encouraging employees to turn on out-of-office notifications when they are not working.
Luckily, employers have until June 2, 2022, (six months from the date the Act received Royal Assent) to put the policy in place. Hopefully in that time the Government will provide details on what is required in the policy and whether there are exemptions.
Prohibition on Non-Competition Agreements
The Act prohibits employers from entering into agreements with an employee that are, or that include, a non-compete agreement. This would include non-compete clauses in an employment agreements. The Act suggests that non-competition clauses in existing employment agreements will become void. The Act does not address non-solicitation agreements or intellectual property agreements.
There is an exemption: the prohibition on non-compete agreements does not apply to executives. “Executive” is defined in the Act to mean any person who holds the office of chief executive officer, president, chief administrative officer, chief operating officer, chief financial officer, chief information officer, chief legal officer, chief human resources officer or chief corporate development officer, or holds any other chief executive position.
Other changes made by the Act include measures aimed at making it easier for internationally-trained individuals to practice in regulated professions, establishing a licensing framework for recruiters and temporary help agencies and ensuring washroom access for delivery workers by requiring business owners to allow them to use the washrooms at the businesses they serve.