Employees’ “right to disconnect” is here

On November 30, 2021, the Ontario legislature passed Bill 27, the Working for Workers Act, 2021.

One of the most significant aspects of the legislation is the addition of a new Part VII.0.1 to the Employment Standards Act, 2000 (ESA), which requires employers to have a policy governing the employees’ right to disconnect from work. The legislation has not yet received royal assent, but that is likely to happen in short order.

The provisions of the new Part VII.0.1 of the ESA are sparse. They provide as follows:

1. An employer with 25 or more employees must have a policy with respect to the right of employees to disconnect from work;
2. The number of employees employed on January 1st of a given year determines if the obligation is triggered;
3. If the obligation to have a policy is triggered (on January 1^st), the policy must be in place by March 1^st of the same year. However, a transition provision provides that employers have at least 6 months from the date Bill 27 receives royal assent to put a policy in place.

   UPDATE: Bill 27 received royal assent on December 2, 2021. Employers must therefore have their policies in place by June 2, 2022;

4. Employees must be provided with a copy of the policy within 30 days of the policy’s preparation;

5. There are no specific requirements about the content of the policy in the ESA; however, such requirements may be set out in regulations; and
6. Some guidance can be taken from the definition of “disconnecting from work”, which means “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.”

The definition of “disconnecting from work” is curious. It is focused solely on communication, which is, arguably, just one aspect of our jobs – actually doing the work is the main thing.  It is likely the drafters believed the ESA already covered the doing of work through its provisions on hours of work, payment of wages and overtime. It is also noteworthy that there is no obligation to confer with employees on the development of the policy, which we have seen with some other mandated workplace policies.

Currently, there is little guidance to provide to employers on the content of their right-to-disconnect policies. HR leaders and employees alike are looking forward to seeing government’s regulations. There are likely to be exemptions for certain classes of employees as well, especially managers. For now, employers should start turning their minds to this issue; however, there may not be much to do until we see the regulations. UPDATE: No new regulations are forthcoming with respect to this new employment standard. Thus, although employers must put in place a policy, the contents of the policy are up to each individual employer.

If you have any questions about workplace policies, contact our employment law team.