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What is the right to disconnect, and does it apply in Canada?

right to disconnect

The right to disconnect refers to employees’ ability to disconnect from work and not engage in work-related communications while they are off-duty. This discussion explores France’s right to disconnect law and examines whether there is a similar law in Canada.

France: the right to disconnect

France’s right to disconnect, or “Le droit à la déconnexion”, came into force on January 1, 2017.

Article 55(1) of the French Labour Code sets out requirements for regulating a company’s use of digital tools during employees’ rest periods and leaves of absence including personal and family leaves. In fact, employers who have more than 50 employees are required to consult with employee representatives (works council or unions) and draft a charter stipulating the procedures for the implementation of the right to disconnect. It also requires that employers provide training to managers and supervisors regarding the reasonable use of digital communication with employees. Employers who have fewer than 50 employees must inform employees of the rules relating to digital communications outside of work hours.

Why was this law created? A 2015 report by Bruno Mettling to the French Minister of Labour, Myriam El Khomri, highlighted the effect of digital communications on labour. Mettling noted that, while the digital transformation provided several opportunities and disruptive innovations, it did carry some risks that negatively affected workers. In addressing these risks, the report concluded that, in order to take advantage of the digital transformation, it was necessary to establish a healthy balance between work and private life.

That is, to prevent fatigue as well as cognitive and emotional overload associated with being constantly connected, the report recommended that employers use tools to simultaneously improve quality of life for workers and take advantage of the digital technologies in their organizations. Mettling emphasized that it was important to prevent workers from suffering from psychosocial risks associated with digital overload, and strengthen the distinction between personal and professional life. To that end, the report recommended that there be a right to disconnect consisting of a regulation on the use of digital communications to employees that involved the creation of tools to suppress digital notifications to employees off-hours.

Since this law was created, employees in France have enjoyed the right to not deal with work communications such as emails while they are off-duty. As a result of this change, it is anticipated that workers will experience less pressure to work unpaid overtime and to experience worker burnout.

In fact, it has been reported that an employer was ordered to pay a former employee €60,000 for failing to respect an employee’s right to disconnect from his phone and computer outside of office hours. France’s Court de Cassation (its highest level court) held that it was unfair to require an employee to permanently leave his telephone on to respond to requests from his subordinates or customers during times when he was not at work. The employee’s number was also given to one of the directors, and this meant that the employee was essentially on call during these times, and had to be paid for his time working in this capacity.

It is important to note that some believe that France’s right to disconnect law is a nice idea, but is quite vague.

Although employers are required to negotiate with employee representatives on how to limit the digital intrusions into private life, the question of efficacy remains in cases where there is no agreement with employees; when this happens, employers simply create a charter on their own that is unilateral in nature. What is more, the law itself does not create an offence with corresponding penalties. In fact, some consider this law to be a “soft law” because it lacks enforcement mechanisms and specific requirements for companies to follow. Some point out that this law may not be practical enough to achieve its goal. Presently, it appears that employers are left with the responsibility of ensuring that they negotiate in good faith and create fair policies that improve the workplace culture to prevent employees from being constantly connected.

Do Canadian workers have a right to disconnect?

Since this right to disconnect has been created France, there has been some question about whether it could be similarly created and applied in Canada. In fact, in the recent labour law review, the federal government considered whether there should be an employment standard that gives workers the right to avoid responding to work-related digital communications while off-duty to prevent the performance of unpaid overtime and worker burnout.

Following the one-year consultation, the government reported in its document entitled, What we heard: Modernizing federal labour standards, that Canadian employees wanted more work-life balance, and thought it would be helpful to have policies put in place to limit the use of work-related devices when not in the office to minimize the interference with family time. Workers shared that they faced pressure to respond to work-related communications outside of work, and this increased the stress that they faced. Indeed, 93 percent of respondents felt that employees should have the right to refuse to respond to work-related communications outside of working hours. Further, 79 percent stated that employers should have policies in place to limit the use of work-related technology outside of working hours. In terms of the ability to fully rest outside of working hours, many commented that pressures to respond to communications while off-duty reduced the ability to recover and refresh when not working.

It is important to note that there were some responders, namely employers, who pointed out that today’s business activities did not operate in a 9-to-5 work environment, and sometimes workers needed to respond to organizations in different time zones. These respondents were of the view that creating a right to disconnect would effectively be legislating too far.

That said, the main message stemming from the report was that employees wanted to see legislative initiatives taken to enable a right to disconnect. Labour Minister, Patty Hajdu, stated:

“It is time for the federal labour standards to be modernized to reflect the realities that Canadians face today, and we’re taking the insights gathered from these consultations very seriously.”

At this point, the federal Canadian Labour Code has not yet included such a right to disconnect for Canadian workers in federally regulated workplaces.

Likewise, no provincially regulated workplaces in Canada have this right to disconnect. However, it is worth mentioning that on March 22, 2018, private members Bill n°1097: Right-to-Disconnect Act was introduced by Gabriel Nadeau-Dubois into the Quebec legislation (1st Session of the 41st Legislature).

Its purpose was to ensure that employee rest periods were respected by requiring employers to adopt an after-hours disconnection policy. However, it only progressed as far as first reading and eventually died on the order paper upon adjournment of the legislature in June 2018. It would have required employers in Quebec to create after-hours disconnection policies in order to ensure that employee rest periods were respected, to post all information documents about the policy in prominent places or distribute them to the employees, and to also reassess those policies each year. In fact, employers would have faced significant fines of $1,000-$30,000 in cases of noncompliance ($1,000-$15,000 in cases of employers with fewer than 100 employees, and $2,000-$30,000 in cases of employers with 100 or more employees).

Recently, the government of Canada confirmed in its paper entitled, Disconnecting from work-related e-communications outside of work hours: Issue paper, that there are currently no provinces or territories that provide this right to disconnect or ignore work electronic communications outside of regular working hours. However, employment standards laws in Canada require that hours that are worked in excess of standard hours must be paid at the overtime rate and provide rules regarding rest periods and maximum hours.

The paper indeed acknowledged that what it means to be “at work” is changing – rapid expansion of mobile technologies means that work is not just tied to one physical location during business hours. Technology is used to create flexible work arrangements in order to deal with globalization and the 24/7 economy, and in some workplace cultures it is simply expected that workers are permanently available and connected in their workplaces. In fact, staying connected and available may be critical for individuals who are attempting to find and obtain further work, to the point where any time spent offline could result in a loss of income.

Although there are several benefits to this approach, this phenomenon creates a blurring of work and non-work and can lead to longer work hours, more stress, and increase work-life conflict. The report noted that research shows that employees frequently check in to work after hours. While it can be advantageous to have the increased flexibility, there are some serious impacts on employees because employees are now expected to work and respond to electronic communications during their personal time.

One main impact is that employees are not able to sufficiently recover from work during their rest periods, and consequently experience increased work-life interference. In fact, it has been found that longer work hours on one day are linked to less productivity on the next day as a result of poorer sleep quality. It has gotten to the point where employees feel that they cannot “switch off”.

Several individuals assert that existing employment standards are not adequate for addressing this phenomenon of constant work-related electronic communications outside of work hours. This is especially true for workers who are working in “third time” – a time when employees are not physically at work, but they are called on whenever they are needed, leaving them to be available 24/7.

What does this mean for employers?

As can be seen from the above analysis, the right to disconnect that exists in France does not yet exist in Canada. However, employers in Canada can acknowledge that there are significant physical and psychological impacts for employees who are constantly connected. It may not be healthy for employees to be working in a culture that promotes the notion that “being on” at all times is a good thing.

It is recommended that employers examine their policies and proactively decide what kind of a culture they wish to create in order to protect employees from experiencing burnout or feeling pressured to work unpaid overtime.

The government report mentioned above, Disconnecting from work-related e-communications outside of work hours: Issue paper, examined some employer approaches taken in other countries. More specifically, some employers in Germany and France have developed their obligations to limit the use of email and other work-related electronic communications outside of working hours. For instance, Volkswagen has created, through an agreement with its works council, a policy that stops Blackberry servers from sending emails outside of working hours so that emails are only received between 7 a.m. and 6:15 p.m. Another example is Daimler, where the company has created a policy that allows employees to set their email program to “holiday mode” while they are on leave (it sends an out-of-office reply, redirects the person emailing to a different staff member, and deletes the incoming emails).

Further, BMW, through an agreement with its works council, has a policy where employees and supervisors are encouraged to agree to hours during which employees can be reached and employees are allowed to register time spent working outside the employer’s premises as working time, so that responding to emails after the end of their normal working day leads to overtime compensation. Also in France, under the collective agreement covering the telecommunications sector, employment contracts must stipulate the hours during which a teleworker may be contacted.

These are just some examples of how employers have established a tone and created a certain culture that respects the idea that employees cannot constantly be connected to work. This is achieved through the implementation of workplace policies and procedures. It is also accomplished through leading by example.

Given current technological capabilities and the intense pressures for productivity, it is not easy to remember the importance of protecting the physical and psychological health of workers. But as seen above, serious implications can result when employees are constantly connected and not given enough time to recover during rest periods. Employers in Canada who are interested in tackling the issue of employee burnout are recommended to review their policies and create effective after-hours disconnection policies and procedures to isolate specific time periods where employees are entitled to disconnect from all work-related electronic communications, and establish procedures concerning the use of communication tools after hours. This can involve actively suppressing communications sent to employees during time periods when employees need to rest.

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Christina Catenacci

Christina Catenacci, BA, LLB, LLM, was called to the Ontario Bar in 2002 and has since been a member of the Ontario Bar Association. Christina worked as an editor with First Reference between February 2005 and August 2015, working on publications including The Human Resources Advisor (Ontario, Western and Atlantic editions), HRinfodesk discussing topics in Labour and Employment Law. Christina has decided to pursue a PhD at the University of Western Ontario beginning in the fall of 2015. Read more
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