There are a couple of Bills making their way through the Ontario Legislature that, if passed, will amend a number of employment statutes and impact employer obligations and employee rights.
Bill 157 would, if passed, amend the Employment Standards Act, 2000 to provide that an employee who has been employed by an employer for at least 13 consecutive weeks and who has experienced domestic or sexual violence or the threat of domestic or sexual violence is entitled to up to 10 days of paid leave and up to 15 weeks of unpaid leave. The leave also applies where a child of the employee experiences domestic or sexual violence, or the threat of domestic or sexual violence.
The the leave of absence is to be taken for any of the following purposes:
- To seek medical attention for the employee or the child of the employee in respect of a physical or psychological injury or disability caused by the domestic or sexual violence.
- To obtain services from a victim services organization for the employee or the child of the employee.
- To obtain psychological or other professional counselling for the employee or the child of the employee.
- To relocate temporarily or permanently.
- To seek legal or law enforcement assistance, including preparing for or participating in any civil or criminal legal proceeding related to or resulting from the domestic or sexual violence.
- Such other purposes as may be prescribed.
In terms of “who pays” the employee, the Bill simply provides that “the money required to pay an employee during a leave of absence… shall be paid out of money appropriated for that purpose by the Legislature.”
The employer may request “evidence reasonable in the circumstances of the employees’ entitlement” to the leave. The Bill also provides that the leave is in addition to any other leave available to the employee under the ESA.
The Bill would also amend the Occupational Health and Safety Act to require employers to ensure that every supervisor and worker receives information and instruction about domestic violence in the workplace and sexual violence in the workplace.
On September 28, 2017 the Bill was referred to a Standing Committee on Social Policy.
Amendments to the Occupational Health and Safety Act occasioned by Bill 168, Occupational Health and Safety Amendment Act (Violence and Harassment in the Workplace) 2009 which came into force on June 15, 2010 imposed an obligation to take every precaution reasonable in the circumstances for the protection of the worker if they become aware of domestic violence that may lead to injury in the workplace.
Dealing with and responding to domestic violence is difficult for employers and employees alike and employers are uncertain what they can and should do to assist employees who they suspect may be victims of domestic violence. The Public Services Health and Safety Association has published a Handbook entitled Addressing Domestic Violence in the Workplace.
The Bill 157 leave provision is certainly valuable but coming as it does in the context of larger employment law reforms being proposed through the omnibus Bill 148, Fair Workplaces, Better Jobs Act, 2017 it is uncertain how it fits in.
A private member’s bill was tabled by an Ontario liberal MPP on October 4, 2017 which, if passed, would expand the protected grounds of discrimination under the Ontario Human Rights Code to include immigration status, genetic characteristics, police records and social condition. Bill 164, Human Rights Code Amendment Act, 2017 was carried at Second Reading and was referred to the Standing Committee on Regulations and Private Bills on October 26, 2017.
In introducing the Bill, Nathalie Des Rosiers stated:
This human rights amendment aims to modernize the Human Rights Code to ensure it responds adequately to new forms of discrimination. It’s essential for a society to give itself a human rights framework to protect itself against emerging negative stereotyping.
If passed section 5 of the Human Rights Code would read as follows:
5.(1) Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, immigration status, creed, sex, sexual orientation, gender identity, gender expression, age, genetic characteristics, police records, social condition, marital status, family status or disability.
(2) Every person who is an employee has a right to freedom from harassment in the workplace by the employer or agent of the employer or by another employee because of race, ancestry, place of origin, colour, ethnic origin, citizenship, immigration status, creed, sexual orientation, gender identity, gender expression, age, genetic characteristics, police records, social condition, marital status, family status or disability.
The Bill defines the new prohibited grounds as follows:
“immigration status” means the status according to Canadian immigration law;
“police records” includes charges and convictions, with or without a record suspension, and any police records, including records of a person’s contact with police;
“social condition” means social or economic disadvantage resulting from,
(a) employment status,
(b) source or level of income,
(c) housing status, including homelessness,
(d) level of education, or
(e) any other circumstance similar to those mentioned in clauses (a), (b), (c) and (d);
“Police records” would replace “records of offences” in the current Code which is defined as conviction for:
(a) an offence in respect of which a pardon has been granted under the Criminal Records Act (Canada) and has not been revoked, or
(b) an offence in respect of any provincial enactment.
The right to equal treatment without discrimination because of genetic characteristics includes the right to equal treatment without discrimination because a person refuses to undergo a genetic test or refuses to disclose, or authorize the disclosure of, the results of a genetic test.
In discussing this proposed amendment, Mme. Des Rosiers stated:
Science has evolved since the implementation of the Human Rights Code. Now we know that people are often encouraged to take a genetic test to determine whether they’re carrying the gene of a disease; however, they are often told that if they do, they may be prevented from having access to an insurance contract, or they may have to disclose it to a future employer. We know that some people have been counselled against genetic counselling on the basis that maybe they are foregoing possibilities of employment or coverage on insurance contracts. This is wrong. It’s wrong for people to be either forced to take a genetic test that they don’t want to do or actually be penalized because, indeed, they have decided to know what their conditions are. This is an important piece to ensure that, indeed, we continue to support science, but have the Human Rights Code speak to the way in which people are forced to make decisions today.
Private members bills do not often make it through the legislative process. That said, I will continue to monitor the progress of this Bill through the Legislature.