The Lieutenant Governor of Ontario proclaimed certain parts of the Working for Workers Five Act (“WFW5”) into effect including changes to the Ontario Employment Standards Act, 2000 (the “ESA”) and the Occupational Health and Safety Act (the “OHSA”). Certain portions of the WWF5, including items related to job postings, are not yet in effect. The effective dates of these portion of the WWF5 are unknown as of the date of the blog post but stay tuned for more information.
Changes to the Employment Standards Act – Sick Leave
Employees who remain employed by an employer for at least two weeks are entitled to three days of unpaid sick leave during each calendar year. Prior to WFW5, employers were permitted to ask for a medical certificate from a qualified medical practitioner. The recent change from WFW5 means that employers are no longer be permitted to ask for evidence from a qualified medical practitioner from an employee in order for that employee to take sick leave under the ESA.
Instead, the new changes allow employers to ask for evidence that is “reasonable in the circumstances”, which will vary on a case-by-case basis. This means if an employer offers up a medical certificate or if the employer asks for evidence other than a medical certificate, the employer will remain on-side of the legislation.
Note that this applies only to the minimum sick leave under the ESA. Any employer who offers sick leave over and above the three-day minimum may continue to request medical certificates from a qualified medical practitioner in respect of any days over and above the three days provided in the legislation. Therefore, if an employee asks for a fourth sick day due to illness during a calendar year, the employer will be permitted to ask for a medical certificate in respect of that day and any further days.
Employers who have written sick leave policies should review the policies to ensure they are only asking for medical certificates when permitted.
Changes to the OHSA – Definitions of Harassment
Another change that is now in effect is the change to the definitions of workplace harassment and workplace sexual harassment. The WFW5 has added the phrase “including virtually through the use of information and communications technology” to each definition so that they now read as follows:
“workplace harassment” means,
(a) engaging in a course of vexatious comment or conduct against a worker in a workplace, including virtually through the use of information and communications technology, that is known or ought reasonably to be known to be unwelcome, or
(b) workplace sexual harassment;
“workplace sexual harassment” means,
(a) engaging in a course of vexatious comment or conduct against a worker in a workplace, including virtually through the use of information and communications technology, because of sex, sexual orientation, gender identity or gender expression, where the course of comment or conduct is known or ought reasonably to be known to be unwelcome, or
(b) making a sexual solicitation or advance where the person making the solicitation or advance is in a position to confer, grant or deny a benefit or advancement to the worker and the person knows or ought reasonably to know that the solicitation or advance is unwelcome; […]
While this change makes it clear that the definitions include workplace harassment across virtual spaces such as Zoom, Microsoft Teams, and other forms of virtual communication, it should not change most employers’ approach to these circumstances. Even prior to the change in definition workplace virtual harassment was an issue that employers needed to investigate.
Nevertheless, employers who have written workplace harassment policies (or Respect in the Workplace Policies, as they are often called) should review their policies and update the definitions to ensure they incorporate the new additions. Employers are required to review such policies annually anyway, so consider incorporating this change into your annual policy review and revision.
If you need assistance reviewing your Respect in the Workplace Policy, please contact us anytime. At Bridge Legal & HR Solutions we can help you untangle and understand the web of obligations that applies to your employment relationships. To find out how we can help, contact us through our contact form or call us at 647-794-5442.
