The Ontario government amended the Employment Standards Act, 2000 (the "ESA") on April 11, 2022 by passing the Working for Workers Act, 2022 (which we previously wrote about). As of October 11, 2022, Ontario employers must have an Electronic Monitoring Policy in place (the "Policy"), a written copy of which must be provided to employees by November 10, 2022.
What is Electronic Monitoring?
Electronic monitoring is not defined in the ESA. However, the Ministry of Labour has indicated that electronic monitoring includes all forms of employee monitoring that is conducted electronically, including:
- the use of GPS to track employee movement of vehicles and other equipment;
- using electronic sensors to track items scanned in stores, offices, and warehouses; and
- website/internet tracking on employee computers during work hours.
Employers may also monitor cellphones that are used for work purposes along with e-mails, online chats, keystrokes, and cameras; however, the Policy must capture this information.
On the other hand, even if the employer has opted not to electronically monitor its employees, the Policy must specifically state this.
Who is Required to Develop the Policy?
Ontario employers that employ 25 or more employees as of January 1, 2022, are required to develop a written Policy. From 2023 onwards, employers with 25 or more employees as at January 1 of each year must have the Policy in place by March 1 of that year.
In determining whether an employer has met the 25-employee threshold, every employee in Ontario must be included in the count. This includes, but is not limited to, part-time employees and employees who are on layoff or leave of absence. Moreover, employers that fall below the 25-employee threshold during the year are still required to maintain the Policy until the following year.
Policy Content Requirements
- a statement as to whether the employer engages in electronic monitoring of employees;
- a description of how and in what circumstances it may electronically monitor employees;
- an explanation of how the information obtained through electronic monitoring may be used by the employer, such as to evaluate employee performance or to ensure appropriate usage of employer equipment during work hours, to name a few; and
- the date the Policy was created and the date that any changes were made to the Policy.
It is important to note that the Policy does not establish new rights for employee monitoring or new privacy rights â€“ the Policy simply requires the employer to be transparent in terms of the electronic monitoring that it is being carried out in the context of the workplace.
The Policy is not exclusive to in-person work. It covers all electronic monitoring that may be occurring in the workplace context, including remote work.
Employers should also consider seeking legal advice to implement such a policy in the workplace to ensure they are compliant with Bill 88.
At Hyde HR Law, we offer expert services in reviewing, revising, and drafting workplace policies. Please do not hesitate to contact us.