On March 13, 2023, the Ontario Minister of Labour, Immigration, Training and Skills Development announced that the Ontario government will be introducing amendments to the mass termination rules to ensure remote employees are entitled to the same enhanced notice period as their in-office counterparts.

Currently, the Ontario Employment Standards Act, 2000 (the ESA) provides that employees are entitled to enhanced notice of termination if the employment of 50 or more employees is terminated at an employer’s “establishment” within a four week period. To date, it has been unclear how remote workers fit into the mass termination regime in light of the location-based definition of “establishment” contained in the ESA. “Establishment” is defined as a location at which the employer carries on business. If the employer carries on business at more than one location, separate locations can constitute one establishment if (a) the separate locations are located within the same municipality, or (b) one or more employees at a location have seniority rights that extend to the other location under a written employment contract, whereby the employee or employees may displace another employee of the same employer. Remote employee’s home offices are not clearly subsumed in this definition.

The proposed changes to the ESA, if passed, will broaden the definition of “establishment” to explicitly incorporate employees’ remote home offices. Firstly, remote employees will now be counted for the purposes of determining whether the 50-employee mass termination threshold has been met. Secondly, employees who solely work remotely will, in a mass termination, become eligible to receive mass termination notice, which is greater than individual termination notice. Mass termination notice is as follows:

• Eight weeks' notice, if the employment of 50 to 199 employees is to be terminated;
• 12 weeks' notice, if the employment of 200 to 499 employees is to be terminated; and
• 16 weeks' notice, if the employment of 500 or more employees is to be terminated.

While it is unclear what the proposed changes will look like as the draft legislation has not yet been published, it is apparent that the Ontario government intends to introduce some clarity for employers as to how to treat remote workers in a mass-termination situation.

The government is also proposing “regulatory changes that would require employers to provide new hires with information in writing about their job, such as pay, work location and hours of work, and the date by which that information needs to be provided (e.g. before their first shift).” This proposed change has received less attention, but is potentially important, as it may require changes to employers’ template offer letters or employment agreements.

Our Dentons Canada Employment and Labour group will continue to monitor and provide updates on the impact of these proposed changes. Should you have any questions about these changes, or about mass terminations more generally, please contact the authors Larysa Workewych and Maggie Sullivan or a member of our team.