Sounding Board: Ontario’s Bill 148 adds administrative burdens, costs for employers

With the majority of the amendments in Bill 148 taking effect in Ontario in early December, it requires employers in the province to undertake a review of their employment policies and practices to ensure compliance.

The bill followed recommendations put forth in June 2017 as part of the Changing Workplace Review. The goal of the review was to address changes imposed by globalization, the increased use of technology, growth in the service sector and trade liberalization. It focused on addressing the increased use of temporary work, the misuse of independent contractors and the lack of predictability and structure in employment scheduling.

Read: Parental leave rules set to undergo major shift as provinces adjust to EI changes

Certain amendments under the bill that are already in effect include the extended option of 18 months for employment insurance parental leave benefits; a new caregiver leave of up to 37 weeks in a 52-week period to provide care for a critically ill child; and a leave of up to 17 weeks in a 52-week period to care for a critically ill adult family member. The bill also explicitly prohibits employers from misclassifying employees as independent contractors.

Amendments taking effect on Jan. 1, 2018, include: an increase in paid vacation to three weeks per year after five years of service; a new formula calculating holiday pay; and an increase in the minimum wage to $14 per hour. A number of new extended leaves will also come into effect, including: 10 days of personal emergency leave, two of which will be paid; a new domestic violence leave of up to 10 days in each calendar year, five of which will be paid; an increase in family medical leave to up to 28 weeks in a 52-week period to provide care to a family member; an increase in pregnancy leave for employees who experience a still birth or miscarriage to 12 weeks; and an increase in leave for a crime-related child disappearance to 104 weeks.

Read: What do Canadian provinces offer around domestic violence leave?

From April 1, 2018, part-time, temporary and seasonal workers will be entitled to be paid equally to full-time employees when performing “substantially the same” job for the same employer. Employees will also be able to ask an employer to review their wages if they believe they aren’t receiving equal pay for equal work.

On Jan. 1, 2019, the minimum wage will increase to $15 an hour and various scheduling provisions will come into effect, including a new entitlement for employees to request schedule or location changes, and a requirement to pay employees a minimum of three hours of wages when they’re on call or the company cancels their shift with less than 48 hours’ notice.

So what Bill 148 mean for employers?

  • Increased administrative burdens

In addition to the direct financial costs that employers will see as a result of Bill 148, employers will bear significant additional administrative burdens. Employers will need to be ready to develop additional processes and procedures and invest time and resources to address and respond to many of the amendments, including: employee inquiries about the rate of pay provided to their co-workers, requests to change their shift assignments or place of work, increased record-keeping requirements and decreased flexibility in scheduling.

Given the increased scrutiny on independent contractor relationships, employers will also need to review their independent contractor agreements and arrangements to reduce potential liability. In our view, those additional administrative burdens could have an even greater impact on small businesses that don’t have a human resources department or consultant.

  • Increased difficulty in managing rising absenteeism

A number of Bill 148’s amendments will make it more difficult for employers to manage their operations and workforce. For example, in addition to requiring that all employers provide employees with 10 days of personal emergency leave per year, two of which must now be paid, the bill also prohibits employers from requiring a worker to provide a medical note to substantiate the need for the time off.

Read: What do Canadian provinces offer around sick, emergency leave?

The proposed changes will make it more difficult for employers to manage growing absenteeism issues in the workplace and ignore the concerns raised in the public consultation process that employees disproportionately take personal emergency days on Mondays and Fridays, on days prior to or just after scheduled vacations or when they had already been denied permission to take a day off.

  • Little effect on protecting vulnerable workers

Despite the significant increase in the administrative burden on employers, in our view, some of the changes in Bill 148 will have little effect on meeting the objective of protecting vulnerable workers. For example, an employee now has the right to request schedule or location changes. However, although an employer must respond to those requests, the bill is silent on whether the employee can challenge a decision to deny them. As a result, the change provides for an increased administrative burden on employers without any real protection or benefit to employees.

Caitlin Russell and Pamela Hinman are associates in the labour and employment group at Cassels Brock & Blackwell LLP.