During the height of the COVID-19 pandemic, it felt like there was no on/off switch between work and downtime, and that an employer could demand employees to respond to emails at any hour of the night.
Ontario’s new legislation aims to address this concern.
Employers may be surprised to learn that, whether they are aware of it or not, they could already have violated provisions of the Employment Standards Act, 2000 (“ESA”).[1] As of June 2, 2022, employers who employed 25 or more employees on January 1, 2022 must have a written policy on “disconnecting from work”, which has been termed in the media as the ‘right to disconnect’.
What does the right to disconnect mean?
Section 21.1.1 of the ESA now defines ‘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”.
Despite the moniker, there is no new “right” being created. The only new requirement is for qualifying employers to have a policy in place that addresses their expectations on responding to work-related communications after hours, whatever those expectations may be.
What can employers do with the policy?
So far, it seems as though employers have wide discretion as to what they want to include in their policies. The policy must apply to all employees (including management), but it does not need to be the same for all groups of employees.[2] The new legislation only provides that qualifying employers must have a disconnecting policy in place, and that they must have done so by June 2, 2022.
Significantly, these policies are not required to include much else. It is for this reason that the legislation has been heavily criticized. The legislation provides little guidance as to how the policy should be enforced, and what is legally permissible under the ESA. Critics have warned that having a policy without any requirements will negate its potential benefits.
The Ontario Ministry of Labour publicized its suggestions on what employers should include in their policies, but these are not legal obligations. Employers will not currently be penalized if they do not follow the Ministry’s suggestions. For example, the Ministry of Labour recommends that employers only allow after-hours communications for emergencies. If an employer’s policy does not reference “emergencies”, they will not currently face any repercussions.
Moreover, few employers have published their policies to date. The Ministry of Labour does not require employers to file their written policies, only to have one distributed among their employees. Some organizations suggest limiting work-related communications to working hours, except in certain emergencies, or discouraging the use of after-hours communication among coworkers.
We are waiting for someone to challenge an employer’s written policy. The new provisions of the ESA are in dire need of clarification if they are to be of any practical use. Without further guidance from the provincial government, a court will need to interpret the “right’, or “suggestion”, to disconnect as it currently stands in the ESA.
[1] Employment Standards Act, 2000, SO 2000, c 41 at Part VII.0.1.
[2] Ministry of Labour, Immigration, Training and Skills Development, “Written policy on disconnecting from work” (Updated 12 July 2022), online: Ontario.ca < www.ontario.ca/document/your-guide-employment-standards-act-0/written-policy-disconnecting-from-work >.
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