On December 2, 2021, the Ontario government passed Bill 27, the Working for Workers Act, 2021. As a result of Bill 27, amendments were made to the Employment Standards Act, 2000 (the “ESA”). One of the key changes to the ESA is the requirement for employers with 25 or more employees to develop a written disconnecting from work (“DFW”) policy by June 2, 2022.
“Disconnecting from work” is defined 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.”
The Ontario Ministry of Labour, Training and Skills Development (the “Ministry) recently updated its ESAGuide (the “Guide”) and confirmed that the amendments to the ESA do not create a new right for employees to disconnect from work. Rather, the rights of employees to not perform work are established through other ESA rules.
As per the Guide, employers must:
- Provide a copy of their DFW policy to each existing employee within 30 calendar days of preparing the policy;
- Provide a copy of their DFW policy to all new employees within 30 calendar days of their hire date; and
- Retain copies of the policy for three years after the policy ceases to be in effect.
Employers will be responsible for determining the content of their DFW policies. The Guide states that:
- The policy must include the date it was prepared and any dates that it was amended;
- The policy must be about disconnecting from work, as defined under the ESA;
- The policy must apply to all employees. An employee is anyone who meets the definition of “employee” under the ESA, which includes employees who are on a leave of absence, officers of a corporation, and employees on a lay-off; and
- The policy must be in place within the specified time period.
It is important to remember that the Guide published by the Ministry is not legally binding. However, such guidance could be persuasive in the interpretation of the ESA and therefore should not be disregarded by employers.
Electronic Monitoring Policy
On April 11, 2022, the Ontario government passed Bill 88, the Working for Workers Act, 2022, which is distinct from Bill 27, the Working for Workers Act, 2021 described above. Bill 88 amends the Occupational Health and Safety Act (which we previously wrote about), creates new legislation for digital workers, and amends the ESA, amongst other changes.
As a result of Bill 88, employers are required to inform their employees if and how they are being monitored electronically. Employers with 25 or more employees as of January 1, 2022, must publish an electronic monitoring policy by October 11, 2022.
Notably, this new requirement does not establish a right for employees not to be electronically monitored by their employer or create new privacy rights. Furthermore, Bill 88 does not limit an employer’s ability to use information obtained through electronic monitoring of its employees.
The Electronic Monitoring policy must contain the following information:
- Whether the employer electronically monitors employees, and if so, a description of how and in what circumstances the employer may electronically monitor employees, and the purposes for which information obtained through electronic monitoring may be used by the employer;
- The date the policy was prepared and the date any changes were made to the policy; and
- Such other information as may be prescribed in Regulations to the Bill. (Such Regulations have not yet passed).
The Bottom Line
With respect to the DFW policy, employers must consider the existing rights of employees under the ESA which may also intersect with the right to disconnect, including vacation with pay, public holidays, hours of work and eating periods, and the rules in Ontario Regulation 285/01 that establish when work is “deemed” to be performed. In order for a DFW policy to be enforceable in the workplace, it must comply with all employee rights under the ESA. As such, consulting with an experienced employment lawyer is strongly encouraged.
With respect to the Electronic Monitoring Policy, while employers have some time to implement this new policy, we strongly encourage employers to begin thinking about this early, as it will take time to develop. Employers should also consider seeking legal advice to implement such a policy in the workplace. Moreover, employers that already have electronic monitoring policies in place may wish to consider a review of existing policies to determine if Bill 88 will necessitate an amendment.
At Hyde HR Law, we offer expert services in reviewing, revising, and drafting workplace policies. Please do not hesitate to contact us.