With this amendment, Ontario became the first province in Canada with a right to disconnect stated in law. But what does a “right to disconnect” mean for employers and employees? Keep reading to learn what there is to know about the right to disconnect in Ontario.
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What Does the New Law Mean for Employers and Employees?
As of March 1, 2022, employers with 25 or more employees were required to have a written policy in place for all employees regarding their rights to disconnect from work. They have until June 2, 2022, to bring that policy into effect.
The ESA 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.”
In 2023, and each subsequent year thereafter, employers who have 25 or more employees in Ontario as of January 1, must implement a disconnecting from work policy by March 1 of that year. Employers with less than 25 employees do not have to implement the policy even if their numbers increase during the year and employers cannot rescind a policy if the number of employees drops below 25 during the year.
Included in the 25-employee count are:
- All “employees” (as defined by the ESA) employed on January 1, including, but not limited to, full-time, part-time and fixed-term employees as well as employees on leave or layoff.
- Employees in all Ontario locations for employers with multiple locations.
Temporary workers are not included in the count.
Which Employees Are Covered by the Policy?
The written policy on disconnecting from work must apply to all of an employer’s Ontario employees, even ones that are not typically included in other provisions of the ESA, such as managers, salespersons and IT professionals. However, an employer can create multiple disconnecting from work policies for different groups of employees or differentiate between groups of employees in a single disconnecting from work policy.
Providing a Copy of the Disconnecting Policy to Employees
Employers must provide their policy for disconnecting from work to employees within 30 days of:
- Implementation of the disconnecting from work policy.
- Changes or updates to the policy.
- A new employee’s date of hire.
The disconnecting from work policy can be a standalone document or it may be included within an employee handbook.
Employers can provide the disconnecting from work policy to employees as a hard-copy or on a computer (e.g., an email attachment or online on a company intranet) as long as employees are able to access and print the policy at work.
Once in place, employers must retain a copy of the policy for at least three years after the policy has been retired.
What Does a Right to Disconnect Mean in Practice?
This explanation is from the Government of Ontario’s current Written policy on disconnecting from work webpage:
“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. Employee rights under the ESA to not perform work are established through other ESA rules.”
In other words, the “right to disconnect law” gives an employee the right to a workplace policy on disconnecting from work. Also, a right to disconnect itself is already covered in the ESA by the law against forcing employees to work more than 8 hours/day without a written agreement (for most Ontario workers.)
In order to determine how a disconnect from work policy is to be enforced you must read this section further down the page titled, “If the policy is not followed”:
“If the employer’s written policy on disconnecting from work creates a greater right or benefit than an employment standard under the ESA, that greater right or benefit may be enforceable under the ESA. 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.”
So, for example, if your employer creates a policy stating that you are not required to answer work calls after 5:30pm regardless of how many hours you had worked in a day, but was continuing to call you after 5:30pm, under this new law, enforcement action could be taken because your right under your workplace disconnecting policy is better than the terms of the ESA.
On the other hand, if the workplace disconnecting policy stated that you had to answer a work call regardless of the time if you haven’t completed your 8-hour workday and your employer was still calling you after you had worked 8 hours, no enforcement action would be taken because your workplace’s disconnect policy does not give you a greater right than the ESA.
In the above scenario, you would be responsible for enforcing your rights as you would if you were being forced to work overtime, by speaking to a Toronto employment lawyer right away. If your employer has violated a term of your employment and you do nothing, the courts generally take this to mean that you consented to the change.
Is the Government Going to Have Any Say Over What’s in A Disconnecting from Work Policy?
As of this writing, there are no official guidelines in the ESA regarding the content of an employer’s disconnecting from work policy – aside from the requirement that a policy must include the date it was prepared and changed if amendments are made to it.
The government may provide more guidance around June of 2022, as that’s when employers are required to have their policies implemented. The government may also add regulations to the ESA over time as they receive feedback from workers and employers.
There are suggestions on the Written policy on disconnecting from work page for what a policy could address. They include:
- An employer’s expectations regarding employees reading and responding to after-hours emails and answering work-related phone calls after work.
- Employer expectations in various scenarios and how they would change depending on factors like the time of day, the reason for the communication and/or who is calling or emailing.
- Requirements of employees regarding turning on ‘out-of-office’ notifications, changing voicemail greetings, etc., when they are not scheduled to work, and other requirements on how to communicate that they will not be responding until their next scheduled work day.
Important Implications of the Right to Disconnect Law
One thing employees must keep top of mind is, if the disconnecting from work policy drastically changes the terms of your employment, you may have a case for wrongful termination of employment in Canada. For example, if the disconnect policy now requires you to be regularly on-call outside of your previous working hours, this may qualify as a constructive dismissal.
Another possible scenario is if the new policy requires you to be on-call one night per week and you forget to keep your phone on after business hours, causing a work crisis that results in your employer terminating you for cause. This classification would not be warranted in your situation as terminations for cause are reserved for severe instances of misconduct, not a one-time mistake.
Unfortunately, however, if you are terminated for cause, your employer does not have to pay you any severance. A termination for cause will also appear on your Record of Employment. Employees terminated for cause are generally not eligible for Employment Insurance (EI) benefits.
The bottom line is, if you’re terminated for any reason, or your employment is substantially changed for any reason, speak to an employment lawyer immediately. The sooner you act, the stronger your case will be.
Above All Else, Remember to Prioritize Mental Health
As debates continue, employers scramble for answers and employees to wonder what this means for them at the end of the day, it can be easy to lose site of the reason for this new law.
The struggle to maintain a healthy work-life balance and to prioritize family and mental health was a universal challenge for many before the pandemic. Italy, France, Spain and Germany all have firmly established “right to disconnect” laws.
The sudden change for many to remote work has made it even more difficult to ‘switch off’, causing employees across the country to continue working well after normal business hours. With reports of burnout from across Canada, this new law is a step in the right direction.
That being said, mental health and disability in Ontario cases are rising and it will take efforts on multiple fronts to address this crisis.
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