The COVID-19 pandemic has transformed the way we live, work, and play. With more people working from home and children completing school remotely, there has been a considerable blurring of boundaries between work and home. These factors are reigniting the discussion on whether employees should have a right to disconnect from their workplace. But is this something Canadians can expect? Below we will explore recent developments to help answer this question.
What is the right to disconnect?
The right to disconnect is the concept that a worker has a fundamental right to stop engaging in work or work-related activities outside of their work hours. That means workers would not be expected to respond to emails or complete work outside of their agreed upon schedule.
The right to disconnect essentially creates an “end” to a workday. In the past, many workers did not or could not continue working after they left their workplace. Nowadays, with the prevalence of technologies that allow us to respond to calls and messages instantly, as well as access our work resources remotely, many workers do work-related activities around the clock.
Jurisdictions where the right to disconnect exists
The right to disconnect has underpinnings in international law. For example, article 24 of the Universal Declaration of Human Rights, states that “[e]veryone has the right to rest and leisure, including reasonable limitation of working hours and periodic holidays with pay.” However, this concept had not made it into a country’s laws until recently.
At the start of 2017, France’s law on the right to disconnect came into force. This law was passed after the release of a report that highlighted problems of employee burnout and the importance of establishing balance between work and one’s private life.
France is not the only country to adopt a right to disconnect. Other countries have also recognized this right, such as the Philippines and Slovakia.
These increasing legislative changes around the globe have sparked the discussion of the right to disconnect in other jurisdictions, including North America.
Is there a right to disconnect in Canada?
The short answer is no, there is currently no legal right to disconnect in Canada. However, there are indicators suggesting that the impacts of the pandemic have forced the government to consider this right more seriously.
Movement in the federal sector
In 2018, a report on modernizing federal labour standards outlined the need to further support work-life balance. The report found that many participants supported a right to disconnect, As workloads become more intense. employees need time to rest outside of working hours.
The report also found some employer organizations believe that enshrining such a right would be a legislative over-step and that being available and on-call is sometimes a requirement in workplaces with continuous operations.
No changes to the Canadian Labour Code have occurred yet since the release of this report.
However, the government recently established the Right to Disconnect Advisory Committee. This committee will make recommendations on how to move forward with the federal government’s commitment to develop (together with employers and labour organizations) a right to disconnect for federally regulated workers.
This committee is expected to provide their recommendations in spring 2021.
Despite some movement in the federal sector, there is currently no province or territory in Canada that has legislated the right to disconnect. Provincial workers do have employment standards laws (such as the Employment Standards Act in Ontario) which outline pay for overtime as well as rules regarding rest periods and maximum hours. Beyond these employment standards, it is often up to the employers to develop workplace policies and cultures that impact how and when their employees work.
With the widespread use of mobile technologies, paired with the rapid rise of remote work due to the pandemic, the conversation surrounding the right to disconnect has been revived.
As employees attempt to balance the muddling between their work and private life, employers should also consider examining their workplace policies and supporting the reasonable use of digital communication with employees in the workplace.
Blogging for Achkar law is Christopher Achkar, founder and principal of Achkar Law. Since being called to the bar in 2016, Christopher works with employers regarding all their HR Law needs at multiple levels of court, including tribunals such as the Human Rights Tribunal of Ontario, the Canadian Human Rights Commission, the Ontario Labour Relations Board, and the Workplace Safety and Insurance Board.
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