The Ontario government’s Working for Workers Act, 2021, introduced the “right to disconnect” law, the first of its kind in Canada. The Act was ostensibly created to provide employee-friendly amendments to workplace laws, providing protection of employee work-life balance, and preventing burn-out. However, questions remain regarding who falls under the purview of the new law and how the law will be enforced.
To Whom Does the New Law Apply?
The Act required Ontario employers with 25 or more employees to implement a policy by June 2, 2022, and further created a requirement that employers with 25 or more employees as of the first day of each calendar year going forward have “a written policy in place for all employees with respect to disconnecting from work” before March 1 of that year. The Act requires employers to provide all employees with a copy of the written policy within 30 days of its creation, or within 30 days of any changes made to an existing policy.
The Employment Standards Act (ESA) Policy and Interpretation Manual offers guidance to Ontario employers in abiding by the new law. The manual states that an employer must count the individual number of employees it employs, and not the number of “full-time equivalents” it employs in determining whether it must adhere to the new law. Each employee counts as one employee, regardless of the number of hours they work or whether they hold part-time or casual positions. The manual also provides a list of employees that employers must take into account when calculating their total employees, which includes probationary employees, those on a leave of absence, and those on strike, among others.
Additionally, each employee in each of the employer’s locations in Ontario must be included in the calculation to ascertain whether the threshold is met. For instance, if an employer owns four clothing boutiques across Ontario, each with 10 part-time employees, the law considers the employer to have 40 employees, and therefore, the employer is required to have a policy in place.
Notably, the law does not apply to the nearly 40% of Ontario private-sector employees who work in federally-regulated industries. These industries include air and ground transportation, port services, banks, federal Crown corporations, and telecommunications. Although these industries do not have an equivalent “disconnect from work” law, other provisions in the federal sphere protect worker boundaries. For instance, guidelines already exist regarding the number of hours these employees can work, vacation time, and holiday time and pay.
What Does the Term “Disconnect from Work” Mean?
The law 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.”
Although the employer must include the date the policy was prepared and the date any changes were made to the policy, the ESA does not specify the information the employer must include in the policy, nor does it specify that the policy must be a particular length. Ultimately, the employer determines the content of the policy itself.
Despite the vague requirements under this new law, employers continue to have the obligation to follow other ESA rules, including those regarding hours of work, breaks, vacation with pay, and public holidays.
How will the Law be Enforced?
If the employer’s written policy on disconnecting from work creates a greater right or benefit to the employee than that provided by the ESA, the greater right or benefit may be enforced under the ESA. However, “if the employer’s policy on disconnecting from work does not create a greater right or benefit, the policy is not enforceable under the ESA.” This means that unless the employer’s policy amounts to a greater right or benefit under the ESA, no enforcement action can be taken by an employment standards officer relating to the new requirement for the employer to have a written policy in place.
In circumstances where the employer’s policy does not amount to a greater right or benefit, an employer may wish to seek legal advice regarding whether the provision would create any entitlements outside of the ESA, such as contractual or common law entitlements.