On June 2, 2022, Ontario employers that employ 25 or more employees as of January 1, 2022, were required to have a written policy with respect to disconnecting from work. An employer is required to provide a copy of this policy to a new employee within 30 days of the day the employee becomes an employee of the employer.
“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.
The disconnecting from work policy shall contain such information as may be prescribed by regulation but no information has been prescribed by the Ontario government as of yet.
This new requirement makes no reference to the hours of work or the hours free from work requirements, or the three hour rule set out in the Employment Standards Act (ESA). So employers did not have much guidance when drafting a disconnecting from work policy.
One of the issues to address was the applicability of the policy to certain employees. For example, how to deal with an employee who worked from 9 am to 5 pm with a scheduled break when working in the office but since COVID hit has been working remotely and has decided to change when she works and may take extended breaks during the day but still works the same number of hours in a day. The same issue arises for management employees who are paid a salary and oversee 24/7 production and/or are required to respond to time sensitive client demands. Another applicability issue is how to address “emergency” situations which require a supervisor to reach out to an employee outside their “regular” working hours to deal with an urgent production or client need.
I expect employees will start filing complaints in relation to their “right” to disconnect from work. The Ministry of Labour will investigate. Initially, the Ministry will ask whether a disconnecting from work policy exists and if not it will likely order the employer to implement one. The complaining employee will not, however, benefit financially from this order. Employees will therefore no doubt also claim that they are owed wages for the time they were not permitted to disconnect from work. This will involve a consideration of an employee’s “regular” hours of work. And whether a person’s salary includes the time the employee was not permitted to connect from work. And whether the three hour rule applies. It will also involve a consideration of whether an ESA officer has the power to order an employer not to contact an employee in the future in relation to a specific fact situation. It will be interesting to see if the disconnecting from work policy requirement will open a Pandora’s Box in relation to wages owed to employees who answer emails and calls outside their “regular” working hours.