Further guidance on 'right to disconnect' policy requirements

On Dec. 2, 2021, Bill 27 became law, introducing several important revisions to the Employment Standards Act, 2000. One of these changes was the new requirement that employers with 25 or more employees implement a written policy on disconnecting from work. The Ontario government has recently provided further details regarding this requirement, which we have summarized below.

The basics: The act requires that every employer that employs 25 or more employees have a written policy on disconnecting from work in place for all employees, and are also required to provide a copy of the written policy to all employees. “Disconnecting from work” is defined in the act to mean 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.

In the first year of these new requirements, employers with 25 or more employees as of Jan. 1, 2022 must implement this policy by June 2, 2022. From 2023 onwards, employers with 25 or more employees on Jan. 1 of any year must have a written policy in place before March 1 of that year.

Does the requirement apply?

As noted above, the requirement to have a policy applies only to employers with 25 or more employees as of Jan. 1 of any year. This includes all employees, regardless of the number of hours they work, including part-time and casual employees. Employers with multiple locations will need to count all employees employed at each location when determining whether the threshold has been met. The only employees not included within this count are assignment employees of a temporary help agency — these employees count towards the temporary help agency’s employee threshold, not that of the client.

The new guidance provided by the government also addresses the impact of changing employee counts throughout the year, and makes it clear that the only relevant employee count is the one tallied on Jan. 1 of each year. As a result, an employee with 20 employees as of Jan. 1 would not be required to implement a right to disconnect policy, even if they grew to 25 employees in February. However, if they still had 25 employees as of Jan. 1 of the following year, they would be required to comply with the requirements.

When counting, employers should also be alert to whether there are any potential related employer or misclassification issues. Where two or more employers are found to be “related employers”, they will be treated as one employer for purposes of the act and all employees employed by the employers would need to be included in the count.

Similarly, while an independent contractor would not normally meet the definition of an “employee” under the act, employers should consider whether these individuals are truly contractors in reality or just in name only. If they are, in fact, employees, they must be included within the count.

Providing copies of the written policy: An employer is required to provide a copy of their written policy to employees within 30 days of the policy being prepared or changed. Any new employees must receive the policy within 30 days of their start date.

The policy may be provided in hard copy, as an attachment to an email (if the employee can print a copy) or via a link to the document online (if the employee can access the document and is able to print a copy).

Record-keeping requirements: Employers must retain a copy of every disconnecting from work policy for three years after the policy is no longer in effect.

What to include in the policy: Interestingly, the Ontario government has clearly identified in its guidance that the changes to the act do not provide employees with a “new” right to disconnect from work and be free from the obligation to engage in work-related communications. In fact, the only express requirements are that it include the date the policy was prepared, the date any changes were made, and that it applies to all employees.

Otherwise, it is up to the employer to determine the content of the policy itself, provided they comply with the existing rights set out in the act with respect to hours of work and eating periods, vacation with pay, public holidays and when work is “deemed” to be performed.

Notably, although the policy must apply to all of an employer’s employees in Ontario (including management and executives), an employer is not required to have the same policy for all employees. In other words, it is permissible for an employer to have different policies for different groups of employees.

The government has provided some examples of what the policy might address, including:

• The employer’s expectations, if any, of employees to read or reply to work-related emails or answer work-related phone calls after their shift is over.
• The policy may set out employer expectations for different situations. For example, the policy may contain different expectations depending on:
• the time of day of the communication
• the subject matter of the communication
• who is contacting the employee (for example the client, supervisor, colleague)
• The employer’s requirements for employees turning on out-of-office notifications and/or changing their voicemail messages, when they are not scheduled to work, to communicate that they will not be responding until the next scheduled work day.

Finally, the government has identified that where an employer chooses to provide a greater right or benefit than is required by the act, that right or benefit will be enforceable under the act (for example, if the policy granted employees a right to disconnect during times when the act would otherwise permit them to be working). However, where the policy does not amount to a greater right or benefit, the policy would not be enforceable.

Key take-aways for employers

The guidance provided by the government confirms that Bill 27 did not create a new right for employees to disconnect from work. As a result, employers will have significant flexibility in terms of creating their disconnecting from work policy.

Although we may receive further guidance if the government introduces regulations addressing the right to disconnect requirements, applicable employers now have enough information to begin drafting their policies. In this regard, employers should consider the needs of their organization in determining how boundaries can be established for all types of employees.