By: Samantha Seabrook and Rebecca Meharchand
Earlier this year, Minister of Labour, Immigration, Training and Skills Development Monte McNaughten announced that Ontario was implementing a “right to disconnect” from work under the Employment Standards Act. As of June 2022, employers with more than 25 employees must have a policy which tells workers when they have the right to disconnect from work.
The policy must apply to all workers, though different groups of employees may be subject to different requirements. The policy must also include the date it was prepared and/or the date of any changes made to an existing policy. Lastly, employers must provide employees with a copy of the policy within 30 days of creating or updating it.
The law was drafted in response to the fact that many employees are working long hours, which often seeps into valuable time with family and friends. This is often especially the case for those who work remotely (or have the ability to work remotely), because they don’t actually need to be physically present at the workplace for their job to be performed. Basically, the idea behind the law was that employers would be expected to draft a “right to disconnect” policy so that personal time might be preserved, giving employees a chance to rest and – as the name suggests – disconnect from the workplace.
Ontario is certainly not the first jurisdiction to implement this type of law. France was the first European country to do so in 2017, before the COVID-19 pandemic altogether, when the legislature added a similar provision to their labour code. Interestingly enough, however, the French law actually mandates some sort of consultation between employers and employees, or unions for those who have organized. The Ontario law, by contrast, only requires that employers create a policy; consultation with employees isn’t necessary in unionized or non-unionized workplaces.
Another big difference between the Ontario law and the French law is that the French law clearly has some consequences for employers who do not follow their right to disconnect policies. In a 2018 court case, a French employer was actually required to pay an employee extra whenever they are required to work during a time where they were supposed to have disconnected. In Ontario, the legislation does not contain legal consequences for not following a right to disconnect policy. The law only requires that employers have a policy. It does not require the employer to issue any kind of remedy if that policy is breached.
How to be compliant
From an employer perspective, compliance with the law is fairly simple and involves the following two steps:
- Create or update an existing policy allowing employees the right to disconnect during certain time(s) of the day/week;
- Provide employees with a copy of the new/updated policy within 30 days of creating or updating the policy; and
- Follow the policy created.
All the right to disconnect law requires is that employers have a policy in place, and that employees be aware of what the policy entails. There are no parameters on what that policy should look like, or what kind of remedy an employee should receive if that policy is breached.
Good Work Analysis: How to be better than compliant
This new right to disconnect law in Ontario is a step in the right direction – it acknowledges that people are working beyond the typical “work day” and that they should have the right to disconnect in order to spend time with their friends and family, or to spend their free time doing something other than work.
However, it doesn’t do much aside from acknowledge the issue.
The law doesn’t place any parameters on the kinds of things that employers should be including in their policies. Theoretically, under this law, an employer could grant an employee the right to disconnect between 12am and 1am, and they would still be compliant.
For employers who want to provide a meaningful right to disconnect, these are some steps you can take to go above and beyond what the law requires:
- Who can disconnect and when?
Evaluate who can disconnect and when by using metrics on employee and client communications outside of normal work hours. Are there time periods where it would not affect your business to have certain groups of employees completely disconnect from work?
- Consult with employees and/or bargaining agent about goals for disconnecting;
Consult with employees about what their goals for disconnecting are, employers can have a good sense of where they should start in the evaluation process by consulting with employees. For example, if employees mainly have a concern with staying connected during vacation time, then the right to disconnect policy can be targeted to those times.
- Regularly revisit the policy to determine if it is satisfying the work/life balance needs of employees
If employees are regularly working during the times at which they’re supposed to be disconnected, this may be a sign that you need to revisit the policy. It could also be a sign that employers need to reassess how work is allocated amongst workers, or whether new employees need to be added to the team.
Ultimately, the right to disconnect policy is the responsibility of the employer. However, the best employers are the ones who recognize the needs of their employees, and that includes the right to disconnect and have a life outside of work.
For more information on how to be compliant, or ways in which you can go above and beyond in implementing a right to disconnect policy, please reach out to us at Seabrook Workplace Law.
