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After over a year of working from home for many Canadians, some experts are calling for the legal right to disconnect.

While remote work has allowed many employees to enjoy a more flexible schedule, this shift has proven to be a double-edged sword. Having your workstation at arm’s length makes it difficult to unplug, and many employees are working more than ever as a result.

A recent Global news article reported that some experts are calling for a legal shift, explicitly outlining employees’ legal right to disconnect from the virtual office, even if they still technically have access to it.

So, what does this mean in the employment law context?

 

There is no denying the COVID-19 pandemic has changed how we work. Some of its effects could have lasting changes beyond the length of the current pandemic.

Existing rules

There are several rules in the Employment Standards Act (“ESA”) put in place to give employees breaks and rest days – which may still be applicable to remote working environments:

  • The 3-hour rule: If an employee (who regularly works more than three hours a day) is required to call in to work but works less than three hours, despite being available to work longer, the employer needs to pay that employee at minimum for three hours of work. This rule exists to ensure some predictability and minimum compensation for an employee’s call-in availability and expectations.
  • The right to rest days: Employers must provide employees with a period of at least 11 consecutive hours free from performing work in each day. This rule exists to ensure that employees can get reasonable rest time between workdays and shifts.
  • Maximum hours: Absent emergency circumstances, employers cannot require or permit employees to work more than 8 hours in a day (or the number of hours in the employee’s regular workday, if greater than 8); and 48 hours in a work week. Employees can agree in writing to work hours over these limits, subject to certain requirements.

Certain classes of employees (e.g. regulated professionals such as lawyers, doctors, or accountants; managerial employees; and commissioned salespeople, to name a few) may not be entitled to these protections. However, even if employees are exempt from these ESA protections, they are still entitled to a reasonably safe and healthy workplace under occupational health and safety legislation. Excessive work demands which interfere with an employee’s mental or physical health can run afoul of the Occupational Health and Safety Act.

For more information on these rights and any exclusions, you can refer to the Ontario government’s online ESA guide or contact legal counsel.

Looking ahead

There is no denying the COVID-19 pandemic has changed how we work. Some of its effects could have lasting changes beyond the length of the current pandemic.

Many employees have grown used to greater flexibility of hours during the pandemic and its positive effects, and may come to expect it permanently. If an employer has offered flexible hours during the pandemic, then – even if such a benefit was never offered to employees previously – its employees may have a right to expect such flexibility in the post-pandemic “new normal”.

To adapt with the times, some companies have put their offices up for lease and made the shift to remote work permanent. This is certainly a significant shift that will require consideration of the potential effect of remote work on employees’ schedules and hours. If your company is considering such a move, be sure to implement proper remote work policies and communicate work hours and expectations in a clear, consistent manner.

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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