Non-compete agreements out, right-to-disconnect policies in: Ontario ‎Government tables first non-pandemic related workplace legislation ‎in months

In a move surprising many employers, the Ontario Government introduced Bill 27,  Working for Workers Act, 2021, signalling that the post-pandemic era may not be ‘business as usual’ for many Ontario employers.

Shortly after releasing its Plan to Safely Reopen Ontario and Manage COVID-19 for the Long-Term, the Government of Ontario has continued to set its sight on the post-pandemic era, this time, by introducing sweeping workplace legislation that will be felt across the employment landscape.

On October 25, 2021, the Ontario Government introduced Bill 27, which the government says “would better protect, support, and attract workers to the province”.  While Bill 27 includes many of the measures that the Ontario Government proposed earlier this month, including:

• making it easier for internationally-trained individuals to practice in regulated professions;
• establishing a licensing framework for recruiters and temporary help agencies; and
• ensuring washroom access for delivery workers,

other proposed changes in Bill 27 were introduced for the first time.

While Bill 27 has only been introduced at first reading, if passed in its current form, it would include the following changes to the Ontario Employment Standards Act, 2000:

Prohibition on non-compete agreements

In a move purportedly geared toward attracting and retaining global talent in Ontario, Bill 27 would prevent employers from entering into any agreement with an employee, in an employment contract or otherwise, that prohibits the employee from engaging in any business, work, occupation, profession, project or other activity that is in competition with the employer’s business after the employee’s employment ends.  While an employer would still be permitted to protect its intellectual property through narrower restrictive covenants, the only exception currently contemplated to the use of non-compete agreements would be in the sale of business context, when the seller becomes an employee of the purchaser.

Written policy on disconnecting from work

If passed, Bill 27 would require any employer with 25 employees or more to develop a written policy with respect to disconnecting from work.“Disconnecting from work” is broadly defined to include “not engaging in work-related communications, including emails, telephone calls, video calls or the sending or reviewing of other messages, so as to be free from the performance of work.”

Employers would be required to implement a disconnecting from work policy within six months of Bill 27 receiving Royal Assent and provide each of its employees with a copy of such policy.

While not yet clarified, we anticipate that the employees excluded from the application of a disconnecting from work policy will be similar to those categories of employees currently excluded from the hours of work and eating period provisions of the Ontario Employment Standards Act, 2000.

Next steps

It is important to emphasize that the planned changes under Bill 27 have not actually been passed into law.  While it is unclear how quickly the Ontario Government plans to move forward with these proposed changes, we anticipate that many in the employer community will want to have input on the legislation.

We will provide further updates as Bill 27 makes it way through the legislature, but in the interim, if you have any questions about the Working for Workers Act, 2021, do not hesitate to contact Matthew Demeo, or any lawyer in our Ontario Employment and Labour Law Group.

This article provides only general information about legal issues and developments, and is not intended to provide specific legal advice. Please see our disclaimer for more details.