On October 25, 2021, Bill 27, Working for Workers Act, 2021, was introduced into the Ontario legislature, received second reading on November 3, 2021, and was sent to the Standing Committee on Social Policy that same day. Additionally, on December 2, 2021, it received Royal Assent. I will be discussing provisions in Schedule 2 that pertain to the proposed “Right to Disconnect.”
What is it?
As you may recall, I wrote a couple of years ago and discussed whether there was a right to disconnect in Canada.
More specifically, I was talking about employees’ ability to disconnect from work and to not engage in work-related activities (including communications) while they were off-duty. The discussion explored France’s right to disconnect law and examined whether there was a similar law in Canada.
After reviewing France’s right to disconnect, “Le droit à la déconnexion” (in force on January 1, 2017), I proceeded to discuss the situation that we had in Canada. Back then, there were already concerns about work-life balance issues and the blurring of the line that separated work and life. Indeed, I referred to an important document released by the Government of Canada entitled, Disconnecting from work-related e-communications outside of work hours: Issue paper, where it was noted that there were no provinces or territories that provided this right to disconnect or to ignore work electronic communications outside regular working hours. That said, employment standards laws in Canada had some requirements: hours that were worked in excess of standard hours had to be paid at the overtime rate, and there were specific rules regarding rest periods and maximum hours.
Also in the paper, it became clear that what it meant to be “at work” was evolving—rapid expansion of mobile technologies meant that work was not just tied to one physical location during business hours. Facilitated by explosive technological developments, flexible work arrangements could be created to address issues surrounding globalization and the 24/7 economy, as well as certain workplace cultures where it was more necessary to be permanently available and connected.
Notwithstanding the benefits, employers in Canada did acknowledge that there were significant physical and psychological impacts for employees who were “constantly on.” To that end, I recommended that employers examine their policies and proactively decide what kind of a culture they wished to create in order to protect employees from experiencing burnout or feeling pressured to work unpaid overtime.
Here we are in November 2021, following the onset of the working from home phenomenon during the COVID-19 pandemic. Sure, there are several conveniences, improved accessibility features, and increased efficiencies that come with remote/hybrid work. But with this context in mind, there is no question that the work-life balance issues that were previously mentioned in the report have only been aggravated since the beginning of the pandemic. This is concerning—especially since the report highlighted the serious implications that can result when employees are constantly connected and not given enough time to recover during rest periods.
Perhaps this is why Ontario has recently proposed a bill that may go a long way to address these concerns.
What does it say?
Under Schedule 2 of Bill 27, the Employment Standards Act, 2000 would be amended in the following ways:
- Section 21.1.1 would define “disconnecting from work” 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
- Section 21.1.2(1) would require employers that, on January 1 of any year, employ 25 or more employees, to before March 1 of that year, ensure they have a written policy in place for all employees with respect to disconnecting from work—and it would need to include the date the policy was prepared and the date that any changes were made to the policy
- Section 21.1.2(2) would require employers to provide a copy of the written policy with respect to disconnecting from work to each of the employees within 30 days of preparing the policy or, if an existing written policy is changed, within 30 days of the changes being made—and under section 21.1.2(3), the same would need to take place for new employees within 30 days of the day the employee becomes an employee of the employer
- Section 21.1.2(4) would require that these written policies contain such information as may be prescribed—at this point, it is unclear what must be added to the policies (we will need to wait for the Regulations for further clarification)
Employers would have six months from the date that Bill 27 receives Royal Assent to comply with the requirements.
What does it mean?
Bill 27 is already at the Committee stage, so now is the time for employers to prepare. To this end, employers are recommended to:
- take some time and craft the kind of culture that they wish to create when it comes to disconnecting from work
- note any new Regulations dealing with required content of the policies
- consider what approach to take when it comes to training workers and being transparent about expectations regarding disconnecting from work
- ensure compliance with the requirements when implementing and enforcing the policies
- take care to support employees in disconnecting from work, and support employees’ well-being by maintaining communication and transparency with remote and hybrid workers
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