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Ontario’s Right-to-Disconnect Law: Disconnected from Reality?

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Ontario’s Right-to-Disconnect Law: Disconnected from Reality? Aquilina Law May 31, 2022

Ontario’s Right-to-Disconnect Law: Disconnected from Reality?

The COVID-19 pandemic made remote work a new reality for many workers, making it harder to separate work from personal life. In order to promote work-life balance and avoid employee burnout, the Ontario Government has taken the appealing approach of passing legislation on disconnecting from work outside of work hours.

Bill 27 (Ontario’s Working for Workers Act, 2021), which received royal assent on December 2, 2021, introduced an amendment to the Employment Standards Act (the ESA) that requires employers with more than 25 staff on January 1st of any year to:

1. Have a written policy on disconnecting from work; and

2. Provide a copy of the written policy to each employee within 30 days of being hired.[1]

Employers currently had until June 2022 to write their policy and, starting in 2023, they will have until March 1 in each of the following years to provide their employees with such a policy. As for defining “disconnecting from work”, the ESA describes it as “not engaging in work-related communications, including e-mails, telephone calls, video calls or the sending or reviewing of other messages, to be free from the performance of work”.[2]

The policy’s guidelines according to the Government of Ontario:

The Working for Workers Act, 2021, provides no further details on the contents and conditions in which the policy applies. However, the Ontario Government has published a document (the “Policy Document”) that gives some guidance in that regard, namely that:

1. The policy must apply to full-time, part-time and casual employees, as well as to employees in all locations of the employer if the employer has multiple locations.

2. In order to determine the number of employees, only those individuals employed on January 1 of any year are to be considered. Thus, if an employer starts January 2023 with 20 employees and doubles that number by June 2023, he is not obligated to write and provide a written policy to his employees until March 2024, and only if the number of employees remains higher than 25 on January 1, 2024.

3. The employer can have multiple policies for different groups of employees or departments.[3]

Notwithstanding such clarifications, a few portions of the Policy Document are rather confusing. Firstly, the document specifies that the policy needs to create a “greater right or benefit than an employment standard under the ESA” in order to be legally enforceable. However, it is hard to imagine a policy on disconnecting from work that does not create a right or benefit for its employees greater than they would have without such policy, given that employees do not enjoy any such benefit as a matter of law.

Secondly, the document also states that “the ESA does not require an employer to create a new right for employees to disconnect from work and be free from the obligation to engage in work-related communications in its policies”. If an employer’s policy does not create a new right for Ontario workers, what does it then accomplish? Is it a matter of employers exposing themselves to fines and other administrative measures if they do not have a policy in place, with employees not having the right to enforce the policy if one exists?

Conclusion

Although the right-to-disconnect law has been given royal assent, new regulations as well as clarifications on the currently provided information are needed in order for the rules to make sense. As it stands, employers will be hard-pressed to comply and employees will be confused as to the extent of their newly found “liberty”.

In Canada, Ontario is the first province to enact a right-to-disconnect law. Perhaps it should look to the many European countries that already have “right-to-disconnect” laws in place. France, Italy and Spain have implemented such laws for four or five years now. More recently, Belgium, Portugal, Slovakia, Ireland, Argentina and Chile have introduced similar laws.

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[1] Section 21.1.2 of the ESA

[2] Section 21.1.1 of the ESA

[3] https://www.ontario.ca/document/your-guide-employment-standards-act-0/written-policy-disconnecting-from-work

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