What Every Employer in Ontario Needs to Know Every employer in the province of Ontario has numerous obligations in relation to employment law matters

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What Every Employer in Ontario Needs to Know

Every employer in the province of Ontario has numerous obligations in relation to employment law matters. The following is a summary of some of the more salient ones.

Please note this paper addresses provincially (as opposed to federally) regulated employers with non-unionized staffs. Additional considerations will apply to union situations. The commentary below is intended as a general guide. Specific advice should be obtained to address specific situations.

(This memorandum is effective at January, 2013)

1. Employment Standards Act, 2000 (Ontario)

The Employment Standards Act, 2000 (ESA) sets minimum standards for conditions of employment in most workplaces in Ontario. The ESA establishes basic employer obligations and employee rights with respect to rates of pay, hours of work and overtime, vacations, public holidays, various forms of leave and more. The ESA is enforced by officers who work for the Employment Standards (ES) Program, which is part of the Ontario Ministry of Labour. They can audit businesses throughout Ontario to ensure compliance. The following are a listing of key ESA requirements:

• Post the poster called “What you Need to Know”
Each employer in Ontario is required to post the “What You Should Know About the Employment Standards Act” poster, version 4.0 in at least one conspicuous location in the workplace. This poster must be printed out on legal-size (8 ½" X 14") paper. It can be printed in colour or black and white.

• Hours of Work
The ESA limits hours that employees can work in a day and in a week. It provides ways in which a company and its employees can agree to work more hours. In the case of hours in excess of the weekly limit, prior approval by the Ontario Ministry of Labour is required, which means the employer must apply for this permission.

The ESA also sets out mandatory rest periods and rules concerning overtime. Further information is available in the chapter on Hours of Work in the ES Guide currently available at http://www.labour.gov.on.ca/english/es/pubs/guide/hours.php.

Minimum Wage
The following chart sets out the lowest hourly rates an employer can currently pay an employee.
Minimum Wage Rate Effective March 31, 2010
General $10.25 per hour
Students $9.60 per hour

• Vacation Time and Pay
Most employees earn at least 2 weeks of vacation time after every 12 months of employment. In practice, employers often give vacation from the first year, but this is strictly not required, i.e., one earns the vacation in the first year in order to take it in the next. Employment contracts often enlarge on the minimum statutory scheme. Employees are entitled to be paid at least 4% of their total wages earned in that 12-month period as vacation pay, i.e. corresponding to the pay they would have received had they worked for such period.

Public Holidays
Ontario has 9 public holidays every year. For more information, see http://www.labour.gov.on.ca/english/es/pubs/guide/publicholidays.php.
Most employees are allowed to take these public holidays with “public holiday” pay. The Ministry of Labour provides employers with access to an on-line calculator (http://www.labour.gov.on.ca/english/es/tools/php_calc.php) to help them calculate the public holiday pay for your employees.

• Leaves of Absence
There are four main types of leaves of absence that some employees are eligible for – pregnancy and parental leave, emergency leave, and family medical leave. These leaves are job-protected. That means employees cannot be terminated for asking for or taking these leaves of absence. Further information on leaves of absence is available at: http://www.labour.gov.on.ca/english/es/pubs/brochures/br_leaves.php

• Termination Notice and Pay
As a statutory minimum, employers must give an employee who has been employed for 3 months or more advance written notice of termination, termination pay in lieu of that notice, or a combination, if the employee is terminated. The amount of notice or pay depends on how long the employee has been working for the employer and the number of employees being terminated in a 4-week period. The common law adds another layer, potentially, of notice or salary in lieu thereof, in that termination of a non-fixed term contract is regarded as terminating a contract of an indeterminate duration, thus requiring reasonable notice or payment of salary in lieu thereof again. Employment contracts can limit this common law component provided the employee signed the contract freely and had the opportunity to obtain his own legal advice thereon.

• Temporary Help Agencies
Changes to the ESA affecting the temporary help sector came into force on November 6, 2009. The publication entitled “Complying with Employment Standards: What Temporary Help Agencies and Client Businesses Need To Know” sets out these new requirements and is available at: http://www.labour.gov.on.ca/english/es/pubs/brochures/br_tempagencies.php

Other Matters Under the ESA
For more information regarding an employer’s responsibilities under the ESA, see “Your Guide to the Employment Standards Act, 2000” available at: http://www.labour.gov.on.ca/english/es/pubs/guide/index.php.__

2. Occupational Health and Safety Act (Ontario)

The main purpose of the Occupational Health and Safety Act (Ontario) (OHSA) is to protect workers from health and safety hazards on the job. It sets out duties for all workplace parties and rights for workers. It establishes procedures for dealing with workplace hazards and provides for enforcement of the law where compliance has not been achieved voluntarily.

The OHSA assigns a mixture of general and specific duties to employers and provides for other duties to be prescribed by regulation. The general duties require an employer to:
• take all reasonable precautions to protect the health and safety of workers;
• ensure that equipment, materials and protective equipment are maintained in good condition; and
• provide information, instruction and supervision to protect worker health and safety.

Specifically, under the OHSA, employers are required to:

Post a copy of the OHSA in their workplace.
The OHSA is available online at:
http://www.e-laws.gov.on.ca/html/statutes/english/elaws_statutes_90o01_e.htm

Post the Poster "Health & Safety at Work – Prevention Starts Here"
Under the OHSA, employers are also required to post any explanatory material prepared by the Ministry, which includes this "Health & Safety at Work – Prevention Starts Here" poster. The poster summarizes workers’ health and safety rights and responsibilities and the responsibilities of employers and supervisors. It also reminds employers that they must not take action against workers for following the Act or for raising workplace health and safety concerns, and seeking enforcement of the OHSA. The poster encourages workers to get involved in health and safety matters and explains when and why to contact the Ministry of Labour. The poster is available online in pdf format at: http://www.labour.gov.on.ca/english/hs/pdf/poster_prevention.pdf.

Prepare and Review a Health and Safety Policy; Develop and Maintain a Program to Implement that Policy
The OHSA also requires employers who have more than 5 employees to prepare and review, at least once a year, a written occupational health and safety policy, and to develop and maintain a program to implement that policy. The policy must be posted in the workplace. Once the policy is adopted, an employer should also implement a program to implement the policy. This program will vary, depending upon the hazards encountered in a particular workplace. For more information regarding the elements of such a program, see http://www.labour.gov.on.ca/english/hs/pubs/ohsa/ohsag_appa.php

Prepare and Review a Workplace Violence and Workplace Harassment Policy; Develop and Maintain a Program to Implement that Policy
The OHSA also requires employers to prepare and review, at least once a year, workplace violence and workplace harassment policies, and to develop and maintain programs to implement those policies. These policies must be in writing and posted in the workplace except for workplaces with 5 or fewer regularly employed workers, unless ordered by an inspector.

We can assist in the development of an appropriate Workplace Violence and Workplace Harassment Policy as well as the other policies mentioned in this paper.

Note: Health and Safety Representative:
Workplaces with 5 or fewer workers are exempt from the requirements of the Act which regulate joint health and safety committees, and from the requirement for a health and safety representative.

For more information on an employer’s responsibilities under the OHSA, see http://www.labour.gov.on.ca/english/hs/pubs/ohsa/ohsag_6.php

3. Workplace Safety and Insurance Act (Ontario) (WSIA)

Depending on how a business is classified, your business may be required to register with the Workplace Safety and Insurance Board (WSIB) and obtain coverage under the WSIA. Even if you are not required to obtain coverage, you may, nevertheless, elect to apply for coverage, i.e., on an optional basis, if your workers are not otherwise covered by a private insurance plan. The value of doing so is to avoid or reduce liability that the company would otherwise have to an employee injured in the workplace. Nonetheless, in the context of an office business (essentially), the risk of such accidents should be assessed to decide if it is worth the cost to enroll voluntarily, since levies will be payable to the WSIB should you do so.

As a general business precaution, employers should ensure that, in any event, their business is properly insured for all normal commercial purposes and has in particular general business, tenant’s insurance and other appropriate coverage.

All Ontario employers have the responsibility to:

Keep a safe and well-maintained workplace
Employers are required by law to take all reasonable precautions to protect workers from illness or injury. If they decide to voluntarily obtain coverage under the WSIA, employers must prominently post the WSIB's "In Case of Injury" poster (Form 82).

• Provide first aid training and first aid kits
The Workplace Safety and Insurance Act requires employers to provide specific first aid equipment and training for their workers.

4. Personal Information Protection and Electronic Documents Act (Canada) (PIPEDA)

PIPEDA sets out ground rules for the management of personal information in the private sector in Canada. Organizations covered by the PIPEDA must obtain an individual's consent when they collect, use or disclose an individual's “personal information”. This extends to information of employees. An individual has a right to access his personal information held by an organization and to challenge its accuracy, if need be. Personal information can only be used for the purposes for which it was collected. If an organization is going to use it for another purpose, consent must be obtained again. Individuals should also be assured that their information will be protected by specific safeguards, including measures such as locked cabinets, computer passwords or encryption.

Employers are responsible to:

• Comply with all 10 of the principles of Schedule 1 to PIPEDA. PIPEDA and the 10 privacy principles in Schedule 1 are available at: http://laws-lois.justice.gc.ca/eng/acts/P-8.6/index.html

• Appoint an individual (or individuals) to be responsible for the organization's compliance.

• Protect all personal information held by the organization or transferred to a third party for processing.

• Develop and implement a privacy policy and personal information protection practices.

How to fulfill these responsibilities

• Give the designated privacy official senior management support and the authority to intervene on privacy issues relating to any of the organization's operations.

• Communicate the name or title of this individual internally and externally (e.g. on Web sites and in publications).

• Analyze all personal information handling practices including ongoing activities and new initiatives to ensure that they meet fair information practices.

• Develop and implement a privacy policy and procedures to protect personal information which defines the purposes of its collection, obtains consent, limits its collection, use and disclosure, ensures information is correct, complete and current, ensures adequate security measures, develops or updates a retention and destruction timetable, processes access requests, responds to inquiries and complaints.

• Include a privacy protection clause in contracts to guarantee that the third party provides the same level of protection as the organization.

• Inform and train staff on the company’s privacy policy and procedures.

• Make information available explaining its privacy policy and procedures to customers (e.g. in brochures and on Web sites).

Our firm can assist businesses with the development of an appropriate privacy policy and personal information protection procedures.

5. Accessibility for Ontarians with Disabilities Act (Ontario)

The Accessibility for Ontarians with Disabilities Act (the AODA) came into force in 2005. The legislation allows the government to develop and enforce mandatory standards for accessibility for persons with disabilities. The first of those standards, the Accessibility Standards for Customer Service Regulation (the Customer Service Standard) sets out various requirements for ensuring that providers of goods and services in Ontario have policies in place that accommodate the needs of customers with disabilities and make the provision of goods and services accessible to those customers.

The Customer Service Standard is not limited to organizations that provide goods or services to end-consumers. It also applies to businesses that provide goods or services to third parties in Ontario (i.e., other businesses or organizations), such as manufacturers, wholesalers and providers of professional services and that have one or more employees.

Service Ontario has indicated that the government is taking the position that the Customer Service Standard applies to all Ontario businesses even if they do not fall squarely within the parameters set out above. Since the compliance obligations are not that onerous, we recommend that all employers comply.

In order to comply with this legislation, employers must create and put in place an accessibility plan that:

• Considers a person’s disability when communicating with them

• Allows assistive devices such as wheelchairs, walkers and oxygen tanks

• Allows service animals

• Welcomes support persons

• Lets customers know when accessible services are not available

• Invites customers to provide feedback.

In addition, employers must train staff on accessible customer service.

How We Can Help

We would be pleased to assist employers with these and their other legal and regulatory requirements, tailored to their specific needs. For assistance, please contact Gary at 416-601-0290 or Libby at 416-418-7204.

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