The pandemic affected us in many ways, including radically shifting how work is performed. Now, it is much more common for individuals to work from home, which has led to a drastic change in work policies. There has been an increase in workers’ connectedness, as they can work through various devices. While this has made it more flexible for workers to perform work tasks, it can also lead to burnout if workers cannot disconnect outside of work hours. The line between one’s personal life and work life becomes blurred. The Ontario government has amended the Employment Standards Act to address this issue. Employers are now required to provide a right-to-disconnect policy to employees.
In this post, we will discuss the right to disconnect from the new amendments to the Ontario Employment Standards Act. We will describe when the policy will apply and what obligations employers must fulfill to ensure they meet the standards. This post will provide key takeaways for employers seeking to understand their requirements under the amended legislation and will help employees understand their rights.
What is the “right to disconnect” under the Ontario Employment Standards Act?
According to the Ontario Employment Standards Act, employers must provide a policy on disconnecting from work to their employees.
Under the Act, disconnecting from work includes “not engaging in work-related communications, including emails, telephone calls, video calls or the sending or reviewing of other messages, to be free from the performance of work.“ From this provision, the Act covers a variety of electronic communication methods.
Notably, the employer has no positive obligation to adopt a new right for employees to disconnect from work after work hours. However, those will be enforced if the disconnection policy provides further rights to the employee. If the policy offers fewer entitlements than as set out in the Employment Standards Act, then the rights in the Act will be enforced.
Does the “right to disconnect” apply in your circumstances?
Generally, employers with 25 or more employees must provide their employees with a policy on disconnecting from work during non-work hours.
The requirements for employers to provide a policy on disconnecting from work was enacted on December 2, 2021. During the early stages (i.e. in 2022), employers with 25 or more employees on January 1, 2022, were required to have a written policy on disconnecting from the workplace by June 2, 2022.
Starting in 2023 and for the following years, employers with 25 or more employees on January 1 of that year must have their written policy on disconnecting from work available before March 1 of that year. In other words, they have approximately two months to prepare and distribute the written policy. Generally, all workers considered employees under the Act will be included in the employee count. This would also include the following types of workers:
- Part-time or casual workers, regardless of how many hours they work
- Employees who have been laid off, so long as the employment relationship has not been terminated and/or severed
- Employees who are on a leave of absence
- Employees who are on strike or who are locked out.
The requirement for employers to provide a policy on disconnecting from work applies to all employers with employees covered by the Employment Standards Act. This requirement does not apply to Crown agencies, corporations, etc.
Employers with multiple locations
For employers with multiple locations, the 25-employee requirement will only include the number of employees working at all Ontario locations. For example, if an employer operates multiple Ontario locations with less than 25 employees each, but the total number of all employees at all the locations exceeds 25, then the requirement applies.
What happens when the number of employees fluctuates throughout the year?
If the employer has over 25 employees sometime after January 1 of that year, they will not need to provide a written policy on disconnecting from work. For example, consider a scenario where an employer has 20 employees on January 1, 2023, but hires ten more employees during the middle of the year. In this scenario, the employer does not need to provide a written policy. However, if there are 25 or more employees by January 1, 2024, then they would need to provide a written policy.
Consider the opposite scenario. If the employer has 25 or more employees at the start of January 1, 2023, but the number of employees decreases below 25 later that year, then the employer would still need to provide the written policy. If by January 1, 2024, the number of employees remains below 25, then the employer will not need to provide a written policy for 2024.
Requirements for employers to provide a right to disconnect policy
The employer’s written policy must cover the topic of “disconnecting from work,” which involves not engaging in work-related communications, including emails, telephone calls, video calls or sending or reviewing other messages, to be free from the performance of work. Note that this covers other communication methods beyond those listed.
In their policy, employers are required to include:
- The date the policy was prepared, including day, month, and year
- The date of any changes made to the policy, including day, month, and year.
The Act does not specify what information needs to be included or how long it should be. It is up to the employer to decide the content of the policy.
The policy could provide wider rights than those in the Employment Standards Act. The case law surrounding the enforceability of such policies is developing, so it is important to consider whether these terms would be upheld as a contractual or common law entitlement beyond the minimum standards in the Act.
When should the policy be provided to employees?
The written policy must be provided to employees within 30 days of being prepared and the policy being changed from an existing policy. If an employer already has a written policy, they are not required to develop a new one. If new employees are being hired, they must provide the policy to the new employee within 30 days of being hired.
The employer can provide the policy in the following formats:
- a printed copy
- an email attachment if the employee can print a copy
- an online link to the document, given that the employee has a reasonable opportunity to access the document and a printer.
While the amended legislation does not require an employer to develop a new right to disconnect from work, employers still need to fulfill requirements regarding a written policy for disconnecting from work. It is important to remember that employees also continue to be covered by the Employment Standards Act, including standards on work hours, even if employees may not receive a greater benefit from a policy on disconnecting from work.
Contact Haynes Law Firm in Toronto for Advice on Workplace Policies
In Ontario, there are new requirements for employers to provide a written policy on disconnecting from work, so it is important to consider the legal effects of such a policy carefully. Our experienced employment law legal team at Haynes Law Firm in Toronto can assist you with employment contracts and policies. For employees, our goal is to ensure that they understand their rights under their employment contract and related policies. Haynes Law Firm also assists employers in avoiding liabilities where their employment contracts or workplace policies are not in line with legal requirements. We are dedicated to finding the best resolution for you.
To book a consultation, please contact us online or by phone at 416-593-2731.