Is your biz or IT consultant your employee? Time to check the fine print, says government of Ontario

Last year, Bill 88, or the Working for Workers Act, 2022, gave employers some new responsibilities, and there are more changes coming down the pike in 2023.

Emond Harnden got you up to speed last fall about the electronic monitoring policy requirement and partner Raquel Chisholm is back with some advice about another two requirements:

1. An exemption in the Employment Standards Act, 2000 (ESA) for business and IT consultants; and
2. An Occupational Health and Safety Act (OHSA) requirement for workplaces that are at risk for worker opioid overdoses.

Exemptions to the ESA for IT and business consultants

“The Employment Standards Act is 100 per cent for the protection of employees,” said Chisholm. “It provides minimum entitlements like minimum wage, statutory holidays and vacation time, as well as the right to overtime pay.”

The question is, when does it apply? For example, the ESA exempts certain professions, like doctors and accountants, from various parts of the legislation. 

Two new exemptions came into force on Jan. 1, 2023 to address the employment status of IT and business consultants, which are newly and broadly defined in the ESA. While the ESA’s definitions are detailed, a business consultant generally refers to someone who provides advice or services to a business or organization regarding its performance, like marketing, and an IT consultant generally refers to someone who provides advice or services to a business or organization regarding its information technology systems.

“First you have to know whether somebody was truly an independent contractor,” said Chisholm. The Ministry of Labour’s guidance says that the new consultant exceptions apply only to individuals who would otherwise be covered by the ESA. The ESA does not apply to independent contractors, so the consultant exception would be irrelevant to them.  

For individuals who meet the new definitions and who are otherwise covered by the ESA, employers need to determine if they meet the following conditions to exempt them:

1. The consultant is providing services through either:
   1. A corporation of which they are a director or a shareholder who is party to a unanimous shareholder agreement, or 
   2. A sole proprietorship with a registered business name.
2. There’s a written agreement where the consultant is paid at least $60 an hour, excluding bonuses, commissions,  expenses, travelling allowances, or benefits.
3. The consultant is paid as specified in the agreement.
4. Any conditions that the government may outline by regulation.

Consulting with an employment law expert like Chisholm is the best way to be crystal clear about your obligations.

Do you need a naloxone kit in your workplace?

Effective June 1, 2023, the Ontario government is requiring employers to keep a naloxone kit in at-risk workplaces. The obligation applies if an employer is aware, or ought reasonably to be aware, that there may be a risk of a worker having an opioid overdose at a workplace where the individual performs work for the employer. Employers will also need to provide training in relation to the naloxone kit, and to ensure that the kit and its storage meet specific requirements.

“This is very much only about employees,” said Chisholm. “Every employer has to ask if there’s a risk of an employee having an opioid overdose at work.” Meaning the obligation does not apply if the risk of an overdose applies to non-workers, like customers or other members of the public at the workplace, or those in the workplace who don’t perform duties for the employer, like workers of other employers in a shared work site.

Chisholm recommends asking these questions to determine whether a risk exists in the workplace: 

• Have you found needles or other opioid paraphernalia in the workplace? 
• Has a worker disclosed an opioid use issue? 
• Have you observed opioid use by your workers in the workplace before? 
• Did someone bring the risk to your attention, such as your health and safety committee or representative, a union representative, or human resources staff?

It’s important for employers to remember their employees still have a right to privacy. Employers can’t disclose more personal information than they reasonably need to in order to comply with this requirement. For example, the employer doesn’t need to disclose all of the information that the employer has about the worker who is at risk to the worker in charge of the naloxone kits.

While there may be steep fines for employers who are not in compliance, the government is taking an “education first” approach to enforcement and is providing it to workplaces that present a high risk. 

If you need more information about how these laws affect your business, contact the employment law experts at Emond Harnden.