Existing vacancy disclosure in job postings: Ontario's rule, who it covers and how to word the statement

Job ads that say "This posting is for an existing vacancy" are following Ontario's Employment Standards Act. Since January 1, 2026, section 8.5 of the Act requires every employer with 25 or more employees to state in each publicly advertised job posting whether it is for an existing vacancy or not, and Ontario's guide to the Act defines an existing vacancy as "a position that is imminently available for a qualified candidate to fill." The statement does not oblige the employer to fill the job, but a posting for a role with no current opening must say there is no existing vacancy; as of November 2026 we found no US state with a similar rule in force.

This page is about that one statement: what triggers it, how to word it, and what agencies and recruiters must do. The other Ontario posting rules (pay ranges, the AI statement, the 45-day reply) are summarized in pay transparency in Canada, and the US bills that copy Ontario's approach are tracked in ghost job laws.

What does Ontario's law say, exactly?

Ontario's guide puts the duty in two halves: if the posting is for an existing vacancy, the employer must say so; if it is not, the employer must state that there is no existing vacancy. Leaving the line out is not a neutral option. Section 8.5(1)(b) allows the regulation to add other required information, and section 8.5(2) allows it to prescribe exceptions; as of November 2026 O. Reg. 476/24 does neither for this section, beyond its general exemption for employers under 25 employees.

Which job postings need the statement?

The test is whether the ad is a "publicly advertised job posting": an external posting that an employer, or someone acting for it, advertises to the general public in any manner (O. Reg. 476/24, s. 2(1)).

Ontario's guide gives "we are hiring" and "we are always looking for talent" as examples of ads that do not advertise a specific position. Once an ad names a role, such as "warehouse associate, night shift," it is a specific position. The guide also treats information in a linked page or attached document as part of the posting, so a short ad that links to a full description is still one posting for these rules.

Remote and cross-border roles. The Act applies where work is performed in Ontario (ESA s. 3(1)), and the exclusion covers only positions to be performed outside Ontario. A remote role that can be done from Ontario is therefore not excluded. Ontario's guide counts employees employed in Ontario toward the 25-employee threshold, so an employer based elsewhere with few Ontario employees should check with Ontario counsel whether it is covered.

What counts as an "existing vacancy"?

Only the guide's definition exists: a position "imminently available for a qualified candidate to fill." Neither the Act nor O. Reg. 476/24 defines it, and as of November 2026 we found no published Ontario decision applying it. Our reading of the plain words, not the ministry's, for common cases:

• Approved replacement for someone leaving next month: existing vacancy. The position is available as soon as a qualified person is found.
• Newly approved headcount with a hiring manager and a budget: existing vacancy.
• Requisition waiting on budget approval or "possible expansion later this year": safer to state no existing vacancy until it is approved.
• Pipeline posting for a role you fill several times a year (nurses, drivers, store staff) with no seat open today: no existing vacancy; when a seat opens, revise the posting.
• Agency posting for a client role the client has not confirmed: no existing vacancy. If the client confirms the opening, revise the posting.

If the answer changes while the ad is live, change the statement. Each version you advertise must be kept, which gives you a record of when the role was, and was not, open.

How should the statement be worded?

The law prescribes no wording, only that the posting disclose one answer or the other. These are example lines, not official text:

This posting is for an existing vacancy.

This posting is not for an existing vacancy. We are accepting applications for future openings in this role.

Put the line in the posting itself, near the pay range and the AI statement, so it travels with every copy a job board or aggregator makes. An Ontario-compliant block might read, as an example:

Pay range: $62,000 to $74,000 per year, plus overtime.
We use artificial intelligence to screen applications for this position.
This posting is for an existing vacancy.

The posted range may not be wider than $50,000 a year, and pay information is not required when the expected pay, or the top of the range, is over $200,000 a year (O. Reg. 476/24, ss. 3 and 4). The AI line is needed only if AI is used to screen, assess or select applicants. More examples are in salary range job posting examples, and how the AI statement fits with other disclosure rules is covered in do you have to tell candidates you use AI.

What does this mean for staffing agencies and recruiters?

• Client postings. When a recruiter or job board advertises for an employer, Ontario's guide says the employer is responsible for meeting the requirements. Agree in writing who confirms whether a role is a live vacancy and who updates the ad when it is filled or cancelled.
• Temporary help agencies. Assignment employees are the agency's employees. The guide counts all of them, active or inactive, toward the agency's 25-employee threshold, and not toward the client's.
• Your own job board. An agency or consulting website that lists clients' jobs is a "job posting platform" under the guide's example. The operator must display a way to report fraudulent postings and post a written policy on how it handles them (ESA s. 8.7), and keep each version of that policy for three years after it stops being in effect (s. 15(8.3)). A site that lists only the employer's own jobs is not a platform.
• Interviews you run for the client. The 45-day duty to tell interviewed applicants whether a hiring decision has been made applies when a recruiter interviews on the employer's behalf; a preliminary screen to check minimum qualifications is not an interview (O. Reg. 476/24, ss. 2(2) and 5). Our rejection email templates help with the follow-up.

What records do you have to keep?

1. A copy of every publicly advertised job posting and any associated application form, for three years after the public can no longer see it (ESA s. 15(7.1)).
2. A copy of each revised version, including the version where the vacancy statement changed, and any linked page or document (Ontario guide).
3. Copies of the information given to interviewed applicants, for three years after it was given (s. 15(7.1.1)).

A screenshot or PDF of each live version, saved with the requisition, is the simplest way to meet this. Many ATS postings are edited in place, which leaves no copy of the old text.

What happens if a posting gets it wrong?

Ontario's ministry invites reports of non-compliant postings by email to [email protected], with the employer's name, address and the posting. Enforcement can include a compliance order, a notice of contravention with a monetary penalty, or prosecution. On conviction, the guide says an individual can be fined up to $100,000, imprisoned for up to 12 months, or both, and a corporation fined up to $100,000 for a first conviction, $250,000 for a second and $500,000 for a third or later (Ontario guide).

Do any US states require an existing vacancy statement?

None that we found as of November 10, 2026. New York's S8877 passed the Senate on April 28, 2026 and the Assembly on June 2, 2026, but the Senate's bill page does not show it delivered to or signed by the governor. As passed, it would require employers with at least 100 employees to state, in bold capital letters, whether a posting is for a current vacancy and the date by which, or no sooner than which, they intend to fill it, or that it is not for a current vacancy and they are collecting resumes. New Jersey's S2136 shows its last action as a referral to the Senate Budget and Appropriations Committee on May 11, 2026, and Pennsylvania's HB 2321 a referral to Labor and Industry on March 26, 2026. Those and other bills are tracked in ghost job laws, and US pay range rules in pay transparency laws by state.

Checklist before you post a role that can be done in Ontario

1. Count Ontario employees on the posting day, including part-time, casual and those on leave or lay-off.
2. Decide whether the ad names a specific position. If it does, it needs the statement.
3. Confirm with the hiring manager or client whether the seat is imminently available.
4. Add the vacancy line, the pay range or amount, and the AI line if AI is used.
5. Remove any Canadian experience requirement from the ad and the application form (ESA s. 8.3).
6. Save a copy of the posting and every revision for three years.
7. Diarize the 45-day reply for everyone you interview.

This is general information as of November 2026, not legal advice. For a specific posting, ask Ontario employment counsel.