The Right to Disconnect – Is There One?

Written by on April 16, 2020 in Employment Law Blog, Employment Law Issues

The right to “disconnect” refers to employees’ ability to fully break from work and not engage in work-related communications outside of work hours.

The days of clocking out at five o’clock are long gone. With virtually everyone owning some kind of Smartphone –and finding it difficult to put them down– employers and employees alike are rarely ever truly off-duty anymore. Employees feel obliged to respond to emails from their bosses at all hours. At the same time, many have become concerned about the lack of “work/life balance”, and more and more Canadians are becoming aware of and sensitive to the mental health repercussions of never being able to fully break from work.

This has led to discussion about “the right to disconnect”, and how we might enforce such a right, not just in Canada but around the world.

As it often does in matters of work/life balance, Europe has led the way in enshrining employees’ right to disconnect. France’s right to disconnect, or “Le droit à la déconnexion”, came into force on January 1, 2017, setting out requirements for regulating a company’s use of digital tools during employees’ rest periods and leaves of absence, including personal and family leaves. Employers of more than fifty employees are required to consult with employee representatives, such as unions, and draft a charter stipulating the procedures for the implementation of the right to disconnect. They are also required to provide training to managers and supervisors regarding the reasonable use of digital communication with employees.

Since this law was created, employees in France have enjoyed the right to not deal with work communications such as emails while they are off-duty. The courts have upheld the law, in one case ordering an employer to pay a former employee €60,000 for failing to respect his right to disconnect from his phone and computer outside of office hours.

While France’s right to disconnect law has not been without criticism, it has created a precedent for respecting employees’ right to work/life balance, and has encouraged other countries to consider enacting similar legislation. Whether this law will be repealed in a post-Covid-19 world remains to be seen.

Currently, Canada’s federal Canada Labour Code does not yet include a right to disconnect for workers in federally-regulated workplaces. Likewise, no provincial employment legislation has enshrined the right to disconnect.

However, in its “Disconnecting from work-related e-communications outside of work hours: Issue paper” released last year, the Government of Canada acknowledged the changing nature of work, the blurring of work and non-work hours, and the serious physical and psychological effects on employees who are never able to “shut off”.

Recent amendments to the Canada Labour Code signify the federal government’s commitment to reforming labour standards. It is likely that the right to disconnect will be addressed during the government’s second term.

In the meantime, employers can proactively take steps to create a workplace culture that respects employees’ boundaries and protects them from burnout, and themselves from employee resentment. In the Issue paper mentioned above, the government noted some employer initiatives taken in other countries. Volkswagen, for example, created a policy that stops servers from sending emails outside of work hours. Although in many industries this would not be a welcomed change, this step demonstrated the company’s interest in ensuring their employees’ ability to disconnect and rest outside of work hours.

Employers who are interested in addressing their employees’ right to disconnect are encouraged to review their policies and create effective after-hours disconnection policies and procedures. They can also lead by example, by cultivating their own work/life balance and refraining from contacting employees outside of work hours.

For advice on implementing workplace policies and procedures regarding disconnection or any other matters, please reach out to any of us at Minken Employment Lawyers at contact@minken.com or call us at 905 477-7011. We will continue to monitor the government’s reform of labour and employment legislation and the impact that Covid-19 may have on it. Also, go to our website and sign up for our newsletter to receive up-to-date Employment Law information, including new legislation and Court decisions impacting your workplace.

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

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