Disconnected on Ontario's right to disconnect

Ontario has enacted Bill 27, titled Working for Workers Act, 2021, which has amended the province’s Employment Standards Act, 2000 (ESA) to create a new requirement for employers with 25 or more employees to have a written policy in place for all employees with respect to disconnecting from work.

For the 2022 calendar year, employers must implement this new policy with respect to disconnecting from work by June 2. Every year after that, a March 1 deadline will apply. The policy must include the date it was prepared and the date any changes were made.

Most people support employers having policies limiting the use of work-related technology outside of work hours, according to a public consultation.

No guidance on what to include

As of April 1, 2022, there are no regulations in effect which address the contents of the written policy and there may not be any by the deadline of June 2. Therefore, the employer has full discretion as to what is or is not included in this policy.

As long as the policy is with respect to disconnecting from work, it appears that it will pass muster. This means that a perfunctory policy may satisfy the objectives of the new legislation.

The actual amount of protection for employees is therefore questionable. Practically speaking, as the legislation is drafted, it appears to provide little-to-no protection to employees and certainly makes things more complicated for the employer. Employers are now having to face the difficult task of trying to figure out the intentions of the legislature, with no guidance as to what to include.

Moreover, unlike for other sections of the ESA such as overtime pay, there is no regulation that limits to whom the policy must apply. For now, it appears that the policy would surprisingly apply to everyone – even managers and supervisors.

The Ministry of Labour has provided an update to the Employment Standards Act, 2000 Policy and Interpretation Manual. However, the manual does not provide any guidance on what must be included in the policy. Rather, the following are suggestions on what can be included:

• The employer’s expectations, if any, of employees to respond to work-related communications after their shift is over.
• 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, and to communicate that they will not be responding until the next scheduled workday.

Managers should monitor employees who don’t take breaks or respond to communications outside of work hours, says an expert.

Difficulties with enforcement

It is difficult to monitor which employees are complying with the policy when everyone is working remotely. Even if an email is sent by an employee in the morning, an employee may have been working on it the previous night, after hours. Or if an email response it in the morning, it is possible the employee was reviewing it the night before.

Employers should be wary of repeated breaches of a policy, as it is difficult to discipline based on policies which are not consistently enforced.

If an employee is terminated, they may raise illegitimate claims that the employer breached its own policy with only the employee’s evidence being relied on as to what work they did at home and when, which could result in an unfair outcome.

An employer will want to ensure that all employees receive the policy and provide the employer with an acknowledgement that they have read and understood it. Employers should also include a mechanism for addressing any issues that an employee has regarding the policy.

Negative ramifications

There are several ways that the implementation of a right-to-disconnect policy may harm employees and employers.

• Interference with flex hours – One positive aspect that came out of the pandemic was a work-from-home arrangement that allowed for flexible work hours. Employees may enjoy flexible hours throughout the day to do activities and make up the hours in the evening. Employers who wish to continue to provide flex hours should carve out this benefit in the policy. 
• Current hybrid work-from-home policy – This policy may also contradict an employer’s current hybrid work-from-home policy. If the work-from-home policy allows flex hours but the new policy does not, there will be confusion as to which applies or what portions apply. Employers should keep this in mind when drafting the right-to-disconnect policy.

• Loss of opportunity to shine – Another potential issue is that employees do not have the opportunity to demonstrate their dedication to the company. Employees are usually rewarded for their dedication and commitment (which is most evident by their agreeableness to sometimes working beyond their scheduled shift). This dedication is often rewarded with a pay raise. Employees may now have to think of other ways to demonstrate their dedication or earn additional income.
• Overtime entitlements – An employee may rely on overtime money as part of their annual income. This new policy may mean cutting down overtime entitlements. If an employee is expected to disconnect from work after their eight-hour workday, they lose the flexibility to work overtime hours, meaning a loss of pay which could be substantial. Employers wishing to still allow employees to work overtime should carve this out in their policy.
• Expectation of management – Typically, managers are paid more than the employees they supervise as there are greater expectations for them to work outside their normal hours. If they are restricted from doing so, it may mean a negative impact on their productivity and perhaps a reduction in pay. This could also result in constructive dismissal claims. There is currently no exemption for this policy for managers and supervisors, meaning that excluding managers and supervisors from the written policy may constitute a breach of the ESA.
• Constructive dismissal – The legislation may also lead to constructive dismissal claims if employees are earning a substantial amount of overtime pay, which is now reduced, for example, from 60 hours to 40 hours. This reduction would be a fundamental change to their contract of employment. Employers should ensure that their employment agreements provide them with the discretion to alter employee working hours.

What’s next?

As the legislation is broad and lacks specifics, it is critical that employers receive further guidance from regulations (if any), amendments to the ESA, updates to the Ministry of Labour’s ESA Policy and Interpretation Manual, or from the Ontario Labour Relations Board. Until then, the legislation will likely cause problems for employees and employers, not to mention the business and legal costs associated with trying to figure out what should or should not be in the policy and the legal costs associated with defending claims for allegations of breach.

Ronald S. Minken is the founder and managing principal, senior lawyer, and mediator at Minken Employment Lawyers in the Greater Toronto Area. Ron gratefully acknowledges Tanya Sambi, an employment lawyer at Minken Employment Lawyers, for her assistance in the preparation of this article. For more information visit www.MinkenEmploymentLawyers.ca.