You might already have a right to disconnect from work and not know it

Blog was co-written by Mathew Rago

As the number of ways to communicate remotely have increased over the past decade, there has been an increasing expectation that employees be available during their off hours. This expectation only grew as people began working remotely during the pandemic and working increasingly during their off hours.

Some employees began to feel that they had to be “on” 24/7 and would be punished by their employers if they weren’t.

The provincial Government has tried to address this by introducing legislation which mandates employers put in place a policy regarding the right to disconnect.

Are there new rights for employees?

This amendment to the to the Employment Standards Act, 2000, creates a new definition for “disconnecting from work” within the Act. “Disconnecting from work” is defined as not engaging in work-related communications, including emails, telephone calls, video calls or the sending or reviewing of other messages, so as to be free from the performance of work.

Its worth noting that the definition of disconnecting from work does not address people who do work that aren’t “connected”. For example, an electrician or construction worker who works nights, or a lawyer that isn’t “connected” to their network after hours but is reading a hard copy of a file.

Technically these individuals are disconnected, but they are still performing work.

The legislation focuses on “communications” but does not explicitly define what would be considered freedom from the performance of work or how work that is not “connected” would be affected.

Timing

This amendment to the Employment Standards Act, 2000 mandates that all employers with 25 or more employees (as of January 1, 2022) must now have a policy in place regarding the right to disconnect from work.

Going forward, employers who don’t have such a policy will be required to look at the number of employees they have as of January 1. If they have 25 or more employees on that date, the employer will be required to put a right to disconnect policy in place by March 1.

Employers have 30 days from the date the policy is put in place or revised to provide a copy to each of their employees.

Which employers need to have a policy?

The requirement to have this policy in place applies to all employers who employ 25 or more employees in Ontario on January 1 of a year.

How do you count 25 employees?

Anyone who meets the definition of “employee” under the ESA is counted. This includes: full-time, part-time, casual, fixed term and, probationary employees (regardless of how many hours they worked). You also count employees who are on leave of absence.

However, you don’t count temporary help agency employees as they are considered employees of the temporary help agency and are included in that company’s count

Multiple locations –  Your count is not limited to one location. Rather, employers with multiple locations must count all of their employees within Ontario to determine whether the 25-employee threshold is met.

For Example: If an employer has 3 offices, with 10 employees each on January 1, that employer employs 30 employees and a written policy must be in place for all employees. This is the case despite there being less than 25 employees per location.

What about related employers? – In some circumstances, two or more employers may be treated as one employer under the ESA. In those cases, all employees who are employed in Ontario by these affiliated employers are included in the count.

Content of the Policy

Contrary to public opinion, the amendment does not establish a specific way for employers to incorporate a right to disconnect into the new policy or create a new right to disconnect. Rather, the only requirements are that the employer must:

• have a written policy about the right to disconnect
• include in the policy the date that it was prepared and the date any changes were made to the policy.

Timing and delivery requirements

Employers must have the policy in place by March 1 if they did not previously have a policy and are required to implement one. The employer must provide a copy of the written policy to each employee within 30 days of preparing the policy.

If an existing policy is changed, the employer must provide a copy of the written policy to each employee within 30 days of the changes being made. Employers do not need to provide a copy of the written policy to its employees annually if the policy has not changed from the previous year.

New employees must be provided with the policy within 30 days of the date their employment starts.

The legislation does not set out how the employer must provide the policy to its employees. Hence some acceptable methods to do so would include providing:

• A printed copy
• An attachment to an email if the employee can print it
• A link to the document online if the employee has a reasonable opportunity to access the document and a printer

Who does the Policy apply to?

The written policy on disconnecting from work must apply to all of the employer’s employees in Ontario. That being said, the employer can have a single policy that applies to all of its employees or a policy that contains different sections for different types of employees (or specific employees).

What do we think?

As there are no guidelines from the legislature, employer have had to be creative in determining what to include in their policies.

The policies we have reviewed and helped create tend to address issues like the employer’s expectations, regarding when employees will or will not read or reply to work-related emails or answer work-related phone calls. The policies have also addressed things like the employer’s requirement for employees to turn on “out-of-office” notifications or change their outgoing voicemail messages when they are not scheduled to work.

The policies for each business will be slightly different and personalized to their business needs.

When crafting right to disconnect policies, employers should ensure that they are not just virtue signaling and that they will be able to abide by the policy they are providing to their employees. For instance, don’t say that employees will be permitted to log off from 5pm to 9am if you expect them to reply to emails that arrive at 7pm. It’s better to have a policy that reflects the true business expectations than one that looks good on paper.