Employers must Develop Right to Disconnect Policy

By Flora Vineberg

Employers will need to roll out disconnecting from work policies by June 2.

As a result of the Covid-19 pandemic, Ontario’s labour market has experienced significant disruptions and a permanently shifted work landscape. Employers have grappled with redefined work locations, rapidly changing public health standards and the need for economic revitalization.

To aid the province’s recovery, the Ontario government introduced Bill 27, Working for Workers Act , which officially became law Dec. 2, 2021. It amends numerous pieces of legislation, including the Employment Standards Act (ESA), in an effort to improve protection and support for Ontario’s workers, while maintaining a competitive advantage in attracting leading global talent.

Working for Workers Act
Bill 27 amends the ESA by introducing a requirement for employers with 25 or more employees as of Jan. 1 of any year to ensure, prior to March 1 of that same year, they institute a written policy for employees with respect to disconnecting from work.

Disconnecting from work is defined as “not engaging in work-related communications, including e-mails, telephone calls, video calls or the sending or reviewing of other messages, to be free from the performance of work.”

The policy must include the date it was prepared and the date(s) any changes were made to it. Employers are required to provide a copy to each employee within 30 days of preparing the policy, or, if an existing policy is amended, within 30 days of any change(s).

The same 30-day window applies to providing new employees with the policy.

Employers are required to retain copies of every policy for three years after it ceases to be in effect.

To Whom the Policy Applies
Pursuant to the ESA, an employee is defined as “a person, including corporate officers, paid to perform work for an employer, a person paid to supply services to an employer, a person being trained by an employer to perform a skill used by the employer’s employees and homeworkers.”

Certain professionals and students in training are exempt, including commercial fishermen, salespersons or brokers as defined in the Real Estate and Business Brokers Act, specified commissioned salespersons and specified farm employees.

The ESA remains silent on whether other employees are exempt from the policy’s application. Such exemptions, if any, may yet be prescribed by regulation.

Required Contents
Notably, Bill 27 does not stipulate any requirements for the content of the employer’s policy. The Ontario government has provided examples, including setting expectations for response time for e-mails and encouraging employees to turn on their out-of-office notifications when not working, but they are not binding on employers. Specific requirements are expected to be published later.

In terms of compliance, employers have six months from that date (not March 1) to put a policy in place. The date the employer uses for assessing whether it has 25 or more employees is Jan. 1, preceding the date that is six months after the day the legislation came into effect (Dec. 2, 2021).

Employees desperate to keep their jobs amid such economic uncertainty are intent on being nimble and available at all hours to respond to employer demands. Technological advancements have more deeply entrenched the expectation of meeting real-time demands, thereby undermining the notion of a ‘typical work day.’

As a result, many fear this legislation may create a two-tiered workforce instead of helping workers and/or promoting better work-life balance. Some employees may choose to disengage according to the policy in place, while others will remain constantly available, hungry for additional work and intent on earning overtime pay, being considered for promotions and/or bonuses. The inadvertent prospect of reputational or financial punishment for those employees abiding by the policy could be significant.

Flora Vineberg is a lawyer at SpringLaw. She specializes in labour and employment law, with a specific focus on sexual assault, harassment and human rights litigation, and workplace investigations. Employing a client-centred and trauma-informed approach, Flora’s background in both criminal and civil law enables her to represent clients from all walks of life with compassion, tenacity and focus. She can be reached at [email protected].

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