Employers Left in the Dark on What to Include in Right to Disconnect Policy

By Ron Minken and Tanya (Tejpreet) Sambi

Ontario is now requiring employers with 25 or more employees to have a right to disconnect policy. However, no guidance has been provided by the Ontario government on what is to actually be included in this right to disconnect policy. In actuality, it does not provide any more protection to employees than what was already provided for under the Employment Standards Act, 2000, such as a limit on how many hours an employee could work per shift and how much time an employee must be given between shifts.

Further to our blog post on February 18, 2022, Ontario has now enacted Bill 27, titled Working for Workers Act, 2021, which has amended the Employment Standards Act, 2000 (“ESA”) to create a new requirement for employers with 25 or more employees as of January 1 of any year to have a written policy in place for all employees with respect to disconnecting from work, which must include the date the policy was prepared and the date any changes were made to the policy.

Disconnecting from work

Employers are required to provide a copy of the written policy to each of the employees within 30 days of preparing the policy, or if an existing written policy is changed, within 30 days of the changes being made. For new employees, employers must provide a copy of the written policy within 30 days of the day the employee begins working.

For the 2022 calendar year, employers must implement this new policy with respect to disconnecting from work by June 2, 2022. Every year after that, the March 1 deadline will apply.

Under the ESA, “disconnecting from work” means not engaging in work-related communications, including emails, telephone calls, video calls or the sending or reviewing of other messages, to be free from the performance of work.

What is to be included in this policy?

There are no regulations in effect which address the contents of the written policy with respect to disconnecting from work and there may not be any put in place by the deadline of June 2, 2022, or perhaps thereafter. Therefore, the employer has full discretion as to what or not is included in this policy.

The Ministry of Labour has provided an update to their Employment Standards Act, 2000 Policy and Interpretation Manual, however, the Policy and Interpretation Manual does not provide any guidance on what must be included in the policy. Rather, the following are suggestions on what can be included:

• 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 policy may set out employer expectations for different situations. For example, the policy may contain different expectations depending on:
  • the time of day of the communication
  • the subject matter of the communication
  • who is contacting the employee (for example the client, supervisor, colleague)
• 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, to communicate that they will not be responding until the next scheduled workday.

Takeaways on disconnecting from work

Given that there is no direction on what to include in the policy, other than that it has to do with “disconnecting from work”, employers should seek the advice of an employment lawyer to ensure their policy does not violate other provisions of the Employment Standards Act, 2000.

How Minken Employment Lawyers Can Help

If you are an employer and have questions about your rights and responsibilities concerning workplace policies or if you are facing legal challenges regarding those policies, we can help. Contact us today to speak to one of our experienced employment lawyers or call us at 905-477-7011 for assistance prior to taking any steps that may expose you to legal liability.

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Please note that this article is for informational purposes only and does not constitute legal advice.

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