Hi everyone, I’m Nadia Zaman, associate at Rudner Law and today I will be talking about Right to Disconnect policies and what employers and employees should know about it.
You may be aware that the Ontario government recently passed the Working For Workers Act 2021, also known as Bill 27. Among other things, Bill 27 introduces the Right to Disconnect, which is the first of its kind in Canada.
So what does the Right to Disconnect mean? It means employees have the right to disengage from all work related activities outside of mandated office hours, such as not checking emails, turning off the work phone, and so on. The Ontario Employment Standards Act, also known as the ESA, already has requirements relating to overtime pay, breaks, and limits on employee’s hours of work.
So what else are employers required to do now? Employers that employ 25 or more employees must have a written policy with respect to disconnecting from work, and the term “disconnecting from work” is very broadly defined. Not engaging in any work related communication such as emails, telephone calls, video calls, or the sending or reviewing of other messages, so as to be free from the performance of work. In addition, employers must retain copies of every written policy on disconnecting from work for three years after the policy ceases to be in effect. You might be thinking, okay but how does this work in practice? Unfortunately, or fortunately, the legislation is vague. Regarding what the policy should entail, it simply states that a written policy shall contain such information as may be prescribed.
Recently the Ministry of Labour released guidance on the Right to Disconnect policies but the guidance basically shows that organizations have a lot of leeway in the actual wording of such policies. So in terms of the requirements, the policy must be in writing, it must be dated, any updates also have to be dated, employers have to provide the written policy to employees within 30 days of the preparation or any amendment, new employees have to be provided with the policy within 30 days of commencing employment, the policy must comply with other provisions of the ESA such as hours of work and rest provisions, the policy has to cover all employees, although you don’t have to have the same policy for all employees, so different categories of workers may have different rules that apply to them, the policy can also be a standalone document or it can be a broader policy or it can be within a broader policy document.
Now in terms of what to consider before you even work on the draft policy, first of all you want to make sure that you consider your operational needs. When you’re thinking about what to write in the policy, think of it like you setting expectations for employees so that they’re aware of what they’re expected to do, when they’re expected to communicate, with your response to communications, for example if an employee is expected to review and respond to work communications like emails and slack messages during business hours or during their regular working hours, whatever they may be, you can indicate that in the policy. You should also refrain from a one-size-fits-all policy. So for example if there’s a policy online you shouldn’t download it and use it for your workplace because the same context may not be applicable and the nature of the workplace may be very different. You should also consider the need for accommodation that may be applicable, such as child care needs or medical needs that an employee may have, and in drafting your policy there should be some provision for accommodation for employees based on legitimate grounds. You should also think about the circumstances that might require an employee to respond to communications beyond their regular working hours, such as any urgent circumstances, as well as mentioning what our urgent circumstances may look like so that employees can differentiate between what’s urgent and what’s not urgent. You should also consider setting out the expectations regarding what’s going to happen if an employee is on vacation or if they’re on a leave of absence. So for example, before going on vacation do they have to have a standard out of office email message or a standard voicemail message that they need to ensure they prepare before they leave.
Now if there’s a collective agreement in place or existing agreements or policies in place you should make sure that there’s no conflict with the Right to Disconnect policy, and this is also a good time for you to review any existing agreements or policies that you have in place with an employment lawyer so that you can update them as needed in order to not only comply with the law but also to strategically manage your workplace.
Now with respect to the requirement, it should be kept in mind that you must have the written policy in place by June 2nd 2022, as long as you have 25 or more employees going forward. As long as an employer has 25 or more employees as of January 1st of the applicable year, the employer must ensure that it has a written policy before March 1st of that year.
We’re helping many of our employer clients prepare and implement Right to Disconnect policies and can help you do the same. That way you can comply with your legal obligations and strategically manage your workplace. We can also help employees understand their rights and represent them to enforce such rights. Well-drafted policies can be a win-win for employers as well as employees, leading to better work-life balance while also allowing better rested employees to be more productive.
If you have any questions or would like to understand more about how we can help you please feel free to contact us.