Over the last 4 years, the term “rule of law” has received much attention both north and south of the border. It basically means all persons (including legal entities like corporations) must follow the law of the land.
For many years, I have lamented the fact that the Ontario government has not done a good job communicating the existence of many workplace laws to employers and it often does not enforce them.
As far as little known laws are concerned, one example is the Accessibility for Ontarians with Disabilities Act (AODA). It is a comprehensive multi-part law. This law has been implemented on a prescribed time table over the last few years. Studies show the majority of employers are not complying with this law. I think this is because employers are unaware of the law. I have no doubt that most employers are oblivious to the next implementation dates.
Next up for private and non-profit organizations with fifty or more employees (as well as all public-sector organizations) is the requirement that public websites and web content posted after January 1, 2012, meet WCAG 2.0 Level AA other than criteria 1.2.4 (live captions) and 1.2.5 (pre-recorded audio descriptions).
In addition, businesses or non-profit organizations with 20 or more employees, as well as designated public-sector organizations were originally required to file an Accessibility Compliance Report by January 1, 2021, which confirms that an organization has met its accessibility requirements under the AODA. This date has been deferred to June 30, 2021.
Another more recent example relates to an employer’s obligation to screen employees for COVID. It is an amendment to Ontario Regulation 364/20 (Rules for Areas in Stage 3) under the Occupational Health & Safety Act. It introduces new mandatory screening requirements. Among other things, this regulation requires that
“The person responsible for a business or organization that is open shall operate the business or organization in compliance with the advice, recommendations and instructions issued by the Office of the Chief Medical Officer of Health on screening individuals.”
At the same time this regulation was introduced, the Ontario Ministry of Health released a COVID-19 Screening Tool for Workplaces (Businesses and Organizations). Please note that employers are not required by law to use this screening tool.
I think most people agree that an employer needs to take all reasonable steps to ensure that the workplace is kept COVID free. I know there is no playbook for dealing with COVID. I just don’t think imposing new detailed legal obligations on employers without adequately communicating this law to employers is the way to go. I predict this will be another law that will not be followed by most employers.
Examples of laws that are not enforced by the Ministry of Labour are compensation practices in certain industries that do not comply with the minimum requirements set out in the Employment Standards Act. I have had to explain to some new clients the conflict between the law and industry practice. As a result, the employer is faced with a dilemma: intentionally break a law or comply with it and be at a competitive disadvantage.
Every time the Ontario government introduces a law that it does not adequately communicate to employers, and every time the government does not enforce systemic law breaking, it is undermining the rule of law. In my experience, most employers want to compete on a level playing field and that means everyone plays by the same rules. For whatever it’s worth, I think Ontario has an uneven playing field as far as the application of workplace laws is concerned.
Doug MacLeod, MacLeod Law Firm
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Great article Doug! It’s a very interesting and unfortunate and maybe even dangerous situation.