Bill 27, the Working for Workers Act, 2021: What Ontario Employers Need to Know

On October 25, 2021, the Ontario Government introduced Bill 27, Working for Workers Act, 2021 (“Bill 27”). On November 30, 2021, Bill 27 was declared carried after Third Reading and is on the cusp of Royal Assent, which should occur in the coming days. Bill 27 significantly amends a number of employment related statutes in Ontario, including the Employment Standards Act, 2000 (“ESA”), the Occupational Health and Safety Act (“OHSA”), and the Workplace Safety and Insurance Act, 1997 (“WSIA”), to name a few.

Although some outstanding questions regarding specific provisions of Bill 27 remain unanswered, some of the highlights of Bill 27 that both employers and employees in Ontario should be aware of include:

Disconnecting from Work

The term “disconnecting from work” is defined as 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. Bill 27 amends the ESA to require employers that employ 25 or more employees to have a written policy regarding disconnecting from work. Employers should be mindful that compliance with Bill 27 will be required within six months from the date Bill 27 receives Royal Assent. Once in force, Ontario will be the first jurisdiction in Canada to legislate disconnecting from work for certain employees.

Unfortunately, however, at this time the specifics of what must be included in a right to disconnect policy, or whether certain employees in Ontario will be exempt from the new law, remains unknown. Given that the disconnecting from work provisions will be included in Part VII of the ESA which generally governs issues related to hours of work, and certain groups of employees are already exempt from the provisions Part VII (including, but not limited to, doctors, lawyers, teachers, engineers, architects), we expect similar exemptions with respect to disconnecting from work will eventually be dealt with by regulation.

Non-Compete Agreements

Bill 27 also amends the ESA to prohibit an employer from entering into an employment contract or other agreement with an employee that is, or that includes, a non-compete agreement. There are exceptions for non-competition clauses that are included as part of a sale of a business that will remain enforceable, and the typical non-solicitation covenants will still be permissible as well.

Following Second Reading, Bill 27 was amended by the Standing Committee on Social Policy to provide for another key exception: executives.

“Executive” is defined in Bill 27 as “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 any other chief executive position.”

This is an important amendment for employers as it ensures that key employees will not be affected by the ban on non-compete agreements.

Washroom Access

An amendment to the OHSA will require owners of a workplace to provide washroom access to workers who are either delivering or picking up items from a workplace. There are exceptions for situations where it would be unreasonable or impractical for health and safety reasons, the nature of the workplace, or if the washroom can only be accessed through a dwelling.

The Key Takeaways

Bill 27 is on the verge of Royal Assent and employers should be ready to comply with the obligations that could soon be required.

Bill 27 will require employers (of 25 employees or more) to develop a written policy concerning the right to disconnect from work. At this time Bill 27 does not state what must be included in the policy, but employers should begin to consider potential inclusions such as response time for emails, out of office notifications, and time-delayed sending of emails.

With respect to the prohibition against non-compete clauses, although already commonly deemed unenforceable by the courts because of their restrictive nature, Bill 27 will void these clauses, subject to the limited exceptions noted above.

The prohibition against non-compete agreements in Bill 27 will be deemed to have come into force on October 25, 2021, but it is unclear whether the prohibition will have further retroactive effect. Employers should already be reviewing any employment agreement entered into after October 25, 2021, and should be ready to update future employment agreements to exclude these clauses altogether.

If you are interested in discussing the implications of Bill 27 at your workplace, please reach out to Trent McBain, [email protected], or one of the employment lawyers at Perley-Robertson, Hill & McDougall LLP. Stay tuned for further updates.