On December 2, 2021, Bill 27, Working for Workers Act, 2021, received Royal Assent and amended the Employment Standards Act, 2000 (“ESA”) to incorporate the “right to disconnect”. The amendment does not create a legal right to disconnect. Rather, it obliges employers with twenty-five or more employees (as of January 1, 2022) to introduce a written “disconnecting from work” policy (the “Policy”) by June 2, 2022. In the amendment, disconnecting 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.”

Employer guidelines

The Ontario Ministry of Labour (the “Ministry”) published an online guide (the “Guide”) to assist employers with developing an ESA compliant policy.

The Guide clarifies two aspects of the amendment. First, employees do not have a new right to disconnect from work communications after regular hours. Rather, employers who engage employees with work communications outside of regular work hours are required to adhere to existing compensation and working time limits under the ESA. Second, the Guide clarifies that all employees are subject to the policy, including managers. Employers can implement multiple policies for different employee categories so long as all employees are covered.

The relevant amendments to the ESA are as follows:

WRITTEN POLICY ON DISCONNECTING FROM WORK

 Interpretation

 21.1.1 In this Part,

“disconnecting from work” means 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.

 Written policy on disconnecting from work

 21.1.2 (1) An employer that, on January 1 of any year, employs 25 or more employees shall, before March 1 of that year, ensure it has a written policy in place for all employees with respect to disconnecting from work that includes the date the policy was prepared and the date any changes were made to the policy.

 Copy of policy

(2) An employer shall provide a copy of the written policy with respect to disconnecting from work to each of the employer’s employees within 30 days of preparing the policy or, if an existing written policy is changed, within 30 days of the changes being made.

 Same

(3) An employer shall provide a copy of the written policy with respect to disconnecting from work that applies to a new employee within 30 days of the day the employee becomes an employee of the employer.

 Prescribed information

 (4) A written policy required under subsection (1) shall contain such information as may be prescribed.

Transition

 (5) Despite subsection (1), an employer shall,

(a)  have until the date that is six months after the day the Working for Workers Act, 2021 receives Royal Assent instead of March 1 to comply with the requirements of subsection (1); and

(b)  determine whether it employs 25 employees or more as of the January 1 immediately preceding the date described in clause (a).

[….]

Transitional regulations

141 (2.0.3.5) The Lieutenant Governor in Council may make regulations providing for any transitional matter that the Lieutenant Governor in Council considers necessary or advisable in connection with the implementation of the amendments made by the Working for Workers Act, 2021. 2021, c. 35, Sched. 2, s. 33 (1).

Employers can still send communications outside regular work hours, provided they comply with existing ESA rules when assigning and remunerating employees for engaging with work communications. Accordingly, the policy must explain how time spent on after-work communications will be traced, guaranteeing weekly maximum hours of work are observed and compensation for that time is paid.

Further, nothing in the amendment prevents an employer from providing greater rights under the policy than required by the ESA. Thus, the policy can grant an employee the right not to engage with work communications even when the ESA permits it. For instance, an employer can include a provision stating that employees are not required to read emails after clocking off. In such a case, employers will be bound by the prescribed terms in their policy, not the less stringent terms of the ESA.

What to include in  disconnecting from work policies

What the policy must include:

The policy must: (1) address “disconnecting from work”; (2) set out the date that the policy was prepared; and (3) set out the date of any revisions to the policy

What the policy may include:

The policy can set out clear expectations pertaining to responding to emails, phone calls, or any other form of work communication that is outside the employee’s regular hours of work.

An adequate disconnecting from work policy might include:

• Who is covered by the policy;
• How after work communications engagement is being monitored and tracked for remuneration purposes;
• How employees will be given notice of the policy, and when reviews of the policy will be conducted;
• What hours employees may disconnect from communications;
• The circumstances employees may be required to work beyond their regular hours of work, including remaining connected, and also how they will be compensated;
• Times in which an employee should be free from work communications;
• The implementation of staggered or flexible hours of work to meet an employer’s requirements while ensuring compliance with overtime and maximum work hours under the ESA.

Employer consequences for failing to comply

At present, there is no defined penalty for an employer who contravenes their own policy. However, the Ministry’s interpretation is that only employers who provide greater rights under the policy than what the ESA provides are subject to discipline under the ESA.

With respect to the requirement to have the policy in place, like any other provision of the ESA, actual failure to produce and circulate the policy could result in the employer being ordered by the Ministry to comply within a set period of time. Employers could also be fined. In extreme cases, employers found to be in violation of the same provision numerous times could potentially face a fine of up to $100,000 for incorporated employers and $50,000 for non-incorporated employers.

Employers with 25 employees or more have until June 2, 2022 to draft and distribute a policy that complies with their obligations under the ESA, including pay for work outside of regular hours and overtime pay.  Importantly, beginning in 2023 and for every year thereafter, employers with 25 or more on January 1 of any year must have a written policy on disconnecting from work in place before March 1 of that year.

With limited guidance provided by the legislature, organizations should consider retaining experienced legal counsel to craft a policy that complies with the amendments without compromising the organization’s mandate.