On November 25, 2023, O. Reg. 340/23: TERMINATION AND SEVERANCE OF EMPLOYMENT made under the Employment Standards Act, 2000 (ESA) (Regulation), amending O. Reg. 288/01 (Termination and Severance of Employment), was published in the Ontario Gazette.  The Regulation came into force on November 10, 2023.  The purpose of the Regulation is to support the amendments to the ESA made by Ontario’s Bill 79, Working for Workers Act, 2023 (Bill 79), the effect of which is to include remote employees when a determination is made as to whether an employer is engaging in a mass termination (50+ employees). 

Bill 79

On October 26, 2023, Ontario’s Bill 79 received Royal Assent and came into force. Bill 79 amended the ESA, among other statutes. 

Under the ESA, an employer is required to give notice of termination if it terminates the employment of 50 or more employees at the employer’s establishment in the same four-week period. Bill 79 expanded the ESA’s definition of “establishment” to include a private residence of an employer’s employee, provided the employee performs work in the private residence and does not perform work at any other location where the employer carries on business.  Accordingly, employees working for an employer exclusively in the employees’ private residences (Remote Employees) are now included when a determination is made as to whether a mass termination (50+ employees) has occurred.  

To ensure that Remote Employees receive the enhanced notice, Bill 79 added the following requirements: (a) that employers provide the notice given to the Director of Employment Standards (Director) to each of the affected employees, and (b) that the notice be posted in the workplace.

The Regulation

The Regulation amends O. Reg. 288/01 by including the information to be provided to the Director regarding Remote Employees in the context of a mass termination. It also amends certain service requirements to the Director and to the employer’s affected employees.

Regarding Remote Employees, the Regulation establishes that:

• The information employers must provide to the Director about Remote Employees includes the total number of Remote Employees employed on an hourly, salaried or some other basis, and the number of such Remote Employees whose employment is being terminated; and 
• The employer need not provide information about its Remote Employees’ work locations.

With regard to service requirements to the Director and to an employer’s affected employees, the Regulation establishes:

• That employers must provide the prescribed form to the Director’s office by personal delivery, mail, fax or email;
• Deemed delivery dates for each of the above methods of delivery; and
• That the prescribed information must be provided to affected employees in the form approved by the Director and in a manner consistent with the ESA’s service of document provisions. 

Bottom Line for Employers

In the context of a mass termination, employers are now encouraged to provide to the Director the required information about their Remote Employees, and to follow the new service requirements to the Director and affected employees.