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In December 2021, Bill 27 received royal assent giving employers six months to prepare a written policy regarding their employees’ right to disconnect from work. (To read more about the bill itself, see our post from December 2, 2021)

Nelligan Law thanks articling student Emma Lodge for drafting this blog post

This means that all employers with 25 or more employees as at January 1, 2022 are required to have their written policy prepared by this Thursday, June 2, 2022. Details on what exactly is to be included in that policy are sparse. To date, there have been no regulations posted about what exactly the policy must contain aside from the need to meet several basic requirements.

The policy must include the date it was written, the date any changes were made to the policy, and must be provided to employees within 30 days of its preparation, or within 30 days of any changes being made. New employees must be provided with a copy of the policy within 30 days of being hired. Though obvious, the policy must be related to “disconnecting from work” defined 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.” All employees must be covered by the policy, but employers are free to choose whether to have a single company-wide policy or to determine different policies for different employees.

Beyond these requirements, Ontario’s Employment Standards Act (ESA) leaves it to each employer to determine the exact content of their policy. Some examples provided by the Ministry of Labour, Training and Skills Development include expectations to reply to emails or answer phone calls after working hours.

While this legislation has been widely said to create a “right to disconnect,” it is important to note that the new amendments do not create any new rights for employees aside from what is prescribed in the ESA regarding hours of work, vacation, and public holidays. Therefore, employers should be careful in how they draft their policy as any new ‘right’ or benefit that they offer to their employees through this policy that goes beyond what is ordered in the ESA will likely be something they will be forced to offer from then on.

Individual employers will want to consider their own workplace culture, company goals, and employee needs when drafting their policies. Examples of these policies can be found by looking to Europe, where policies about disconnecting from work have been in place since the mid-2010s. In Germany, one large employer even turned off email servers outside of workhours. However, while a highly detailed and strict policy might mean a more easily enforced requirement to disconnect, this could impact the flexibility of workers to create a workday that fits their schedule, especially for remote workers, and might not be appropriate in some situations. A more flexible policy, however, might put the onus on the employee to ‘choose’ to disconnect, some of whom might be reluctant to do depending on the culture of their company. This could be especially problematic in reinforcing divisions between those who have the option to continue to work and those with caregiving obligations. Employers should also stay abreast of new developments and keep an eye out for new regulations that may be put in place in the future.

It is not too late to have your policy in place before the deadline on June 2, 2022. If you have any questions about developing your own workplace policy on disconnecting from work, or you would like help in drafting such a policy, do not hesitate to contact our employment law team.

Author(s)

This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2021 Nelligan O’Brien Payne LLP.

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