The Act introduces stricter rules around layoffs and workplace safety
Workers who are laid off could be entitled to three days of unpaid leave to look for a new job during their notice period, under proposed reforms to Ontario's workplace laws.
The entitlement would apply to restructures where more than 50 or more staff are let go and are part of the Ontario Government's proposed Working for Workers Seven Act.
“Employers will be obligated to give three days of unpaid leave, essentially during a working notice period, to allow employees to look for a new job and attend interviews,” says Matthew Fisher, barrister and solicitor at Lecker and Associates.
Another proposed change to the Employment Standards Act deals with temporary layoffs. Currently, the maximum duration is 35 weeks. This legislation seeks to extend that to 52 weeks—but with strings attached.
“The legislation proposes to extend the maximum period of temporary layoffs from 35 weeks to 52 weeks, but they’ve also imposed a requirement in order to do that, both to get the consent of the employee and of the Director of Employment Standards,” Fisher explains.
Navigating the clash between statutory changes and common law
While this may appear to offer employers more flexibility, it’s far from a free pass. The consent requirement creates a new compliance burden, and it doesn’t override common law standards, which often treat layoffs of such length as constructive dismissal.
“It is important to note, though, that these changes are to the Employment Standards Act, not to the common law,” he says. “The common law still treats layoffs differently.”
But if employers secure written consent for extended layoffs, their legal footing improves.
“By requiring the consent of the employee, if the employee does consent to a layoff in excess of 35 weeks, the employer will be in a much better position to say there wasn’t a contractual breach of common law,” Fisher says. “Because having consent of the employee makes it much harder for that employee to say that their rights were breached.”
Whether employers will widely use this provision is questionable, as Fisher notes there are practical limitations.
“A 52-week layoff is exceedingly long period of time for an employee to be out of work and without employment income. So, I question whether this will realistically be widely used,” he says.
Stronger enforcement powers under OHSA and WSIA target employer compliance
There will also be changes to enforcement under the Occupational Health and Safety Act (OHSA) and the Workplace Safety and Insurance Act (WSIA).
Unlike the layoff provisions, which hinge on employer appetite and employee consent, the new OHSA and WSIA measures increase potential exposure for businesses across sectors. Fisher anticipates these changes may have the most tangible impact.
“Under the Occupational Health and Safety Act, there’s administrative penalties that are added,” Fisher explains. “Similarly, under the Workplace Safety and Insurance Act there’s an attempt to increase enforcement, which gives government the opportunity to pursue remedies in a different and presumably the government hopes a more effective way.”
Incremental shifts, but employers can’t afford to be complacent
Ultimately, Fisher doesn’t see the amendments having “seismic changes for employers or employees, as they don’t necessitate meaningful changes for most employee contracts. Employers should, however, be sure they are updating any policy documents to reflect the changes, Fisher says.
“Much like the previous six pieces of legislation in this series, these are incremental and some of them are, I’d call, boutique changes,” he says.
“To the extent that they have precedence, and how they conduct those terminations, the communications with their employees, they will need to change,” Fisher says.
