Navigating the Seismic Shifts on the Employment Law Landscape

By Laura Williams

When it comes to years of transformative labour and employment law change across Canada, few have been as memorable as 2018.

The federal government’s move to legalize recreational cannabis in October cast a haze across organizations that were suddenly faced with a range of potential accommodation and liability challenges, most notably in safety-sensitive environments. In most provinces, governments added employee protections to their Human Rights Codes and employment standards legislation. In Quebec, for example, the Legault government introduced a series of new HR law amendments, from tightening workplace harassment protections to expanding paid vacation leave for employees with more than three years of service with the same organization.

But it was in Ontario that organizations and associations of all stripes faced the greatest upheaval, as the new Progressive Conservative government upended a host of recent, highly controversial, labour and employment law changes that culminated in the passage of the contentious Bill 148, the Fair Workplaces, Better Jobs Act, 2017. The Ford government promised an employer-friendly change of course with Bill 47, the Making Ontario Open for
Business Act, 2018—which, among other measures, capped the minimum wage at $14 per hour, repealed new personal emergency leave day entitlements and repealed equal work for equal pay provisions. While the government took strides to make it easier to do business in the province, doing so meant another round of costly and time-consuming HR policy and procedure revisions for organizations, many of which had yet to fully comply with the original round of legislative amendments.

While 2019 is poised to be demonstrably less momentous on the labour and employment law front, there are trends that every association executive should be watching closely.

First and foremost, is the ongoing effort to manage the impact of cannabis use in the workplace. With organizations taking steps to prohibit off-duty use of the drug by employees—and some unions promising legal action in response—organizations that don’t already have effective (and enforceable) substance usage policies in place will need to draft and implement them immediately to avoid potential legal headaches.

In Ontario, the Tories’ move to indefinitely postpone implementation of the Pay Transparency Act—legislation that would have required organizations to draft pay transparency reports and allow employees to freely discuss compensation information—has been hailed by employers, as has Bill 66, Restoring Ontario’s Competitiveness Act, 2018. If passed, this legislation would ease restrictions on overtime scheduling, while rolling back potentially onerous changes to the Labour Relations Act, 1995.

An ongoing, if existential, consideration is the rapidly-evolving #MeToo movement, which has quickly—and some would argue, fundamentally—impacted workplace relations across North America. Organizations are still struggling to understand how efforts to curb workplace harassment of all kinds should be embraced and used as a guidepost to amend their HR policies and procedures. They will continue to seek ways to leverage the movement’s positive developments to improve their workplace cultures, position as employers of choice and attract, retain and engage their industry’s best and brightest.

It’s an extremely complex undertaking, and is likely to be one of the most fundamental issues— of many—shaping organizations in the year ahead.