The Ontario government recently introduced- two new mandatory policies for qualifying employers, the first on “disconnecting from work” and the second on “electronic monitoring of employees”.

Bill 27, the Working for Workers Act, 2021, amended the Employment Standards Act, 2000 (the “ESA”) to require Ontario employers with 25 or more employees to have a written policy with respect to disconnecting from work. Qualifying employers must implement their policies by June 2, 2022.  Cunningham Swan’s Kalen Ingram first reported on the “disconnecting from work” policy requirements and other legal change arising from Bill 27 here. 

Bill 88, the Working for Workers Act, 2022, amended the ESA to require Ontario employers with 25 or more employees to implement a written policy regarding its electronic monitoring of employees. Qualifying employers must implement their policies by October 11, 2022.

We provide further information about these policy requirements, and the corresponding obligations of employers, below.

Policy on “Disconnecting from Work”

Ontario employers with 25 or more employees on January 1, 2022 have until June 2, 2022 to implement a written policy on “disconnecting from work”. From 2023 onwards, employers that employ 25 or more employees on January 1 of any year must have a written policy in place before March 1 of that year. Existing employees must be provided with a copy of the policy within 30 calendar days of the policy being prepared  or changed, and new employees must receive a copy within 30 calendar days of being hired.

The term “disconnecting from work” is defined under the ESA 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”.  However, employers have been provided with little detail regarding their substantive obligations relating to these policies, and no regulation has yet been published prescribing any mandatory content. As the June 2, 2022 implementation deadline approaches, it becomes increasingly unlikely that a regulation with any substantive requirements will be introduced.

On February 18, 2022, Ontario’s Ministry of Labour, Training and Skills Development (the “Ministry”) released guidance on Bill 27 via its Guide to the ESA (the “Guide”). The Ministry confirmed that the policy requirement does not (yet) create any new legal right for employees to disconnect from work. Qualifying employers are simply required to implement a policy addressing the topic of “disconnecting from work”, as defined above.  However, if an employer introduces a “right to disconnect” in its “disconnecting from work” policy, the employer may establish such a right for its employees as a greater right or benefit than required under the ESA.

Currently, the only requirements for a “disconnecting from work” policy are to include the date on which it was prepared and the date any changes were made.  Specific provisions addressing how employees are to “disconnect from work” are not required. However, the Guide provides the following examples of content that could be included in an employer’s policy: 

• the employer’s expectations, if any, of employees to read or reply to work-related emails or answer work-related phone calls after their shift is over;
• the employer’s expectations for different situations, for example based on the time of day of the communication, the subject matter of the communication, or who is contacting the employee; and
• the employer’s requirements for employees turning on out-of-office notifications and/or changing their voicemail messages when they are not scheduled to work.

The Guide also provides information on the administrative aspects of “disconnecting from work” policies, including:

• Retention Obligation: Employers must retain a copy of every written policy on disconnecting from work for three years after the policy is no longer in effect; and
• Implementation Requirements: If, on January 1, the employer employs fewer than 25 employees in Ontario, then it is not required to have a written policy in place on “disconnecting from work”. On the other hand, if an employer employs 25 employees or more in Ontario on January 1 and the employee count decreases in the same calendar year, the employer is still obligated to have a written policy in place on disconnecting from work. 

A disconnecting from work policy must apply to all the employer’s Ontario employees. This includes anyone who meets the broad definition of “employee” under the ESA.  Different provisions may apply for different categories or classes of employees, and these differences can be addressed under a single policy, or an employer may have multiple policies dealing with different categories or classes.

Policy on the “Electronic Monitoring of Employees”

Ontario employers with 25 or more employees on January 1, 2022 have until October 11, 2022 to implement a written policy regarding the “electronic monitoring of employees”. Thereafter, employers with 25 or more employees as of January 1 of any year must have a written policy in place by March 1 of the same year.  Existing employees must be provided with a copy of the policy within 30 calendar days of the policy being prepared  or changed, and new employees must receive a copy within 30 calendar days of being hired

An employer’s electronic monitoring policy must set out the following information:

• whether the employer electronically monitors employees and, if so, a description of how and in what circumstances the employer may monitor employees, and the purposes for which information obtained through electronic monitoring may be used by the employer; and
• the date the policy was prepared and the date any changes were made to the policy.

The province has yet to define “electronic monitoring of employees” or prescribe any further requirements, prohibitions, or exemptions.

We will continue to monitor and provide updates on the above policies as further information becomes available. Please do not hesitate to reach out to the Labour & Employment Team at Cunningham Swan with any questions on these matters.