Description

The right to disconnect is here! Well, sort of. This week, Jill and Dana discuss Ontario’s recent implementation of Bill 27: Working for Workers Act, requiring employers with over 25 staff members to have a written policy outlining employees’ right to disconnect. They talk workplace policies, burnout, and what these new rules mean for both employers and employees.

Full episode transcript below:

Narrator: This podcast is produced by Nelligan Law. 

Dana DuPerron: Welcome to All Worked Up. The podcast where two employment lawyers break down real life workplace issues that affect real people. I’m Dana DuPerron.

Jill Lewis: I’m Jill Lewis and we’re senior associates at Nelligan Law, and we’re super excited to bring you this podcast aimed at making employment issues interesting, accessible for employees and employers.  Welcome to All Worked Up I’m Jill.

Dana DuPerron: And I’m Dana.

Jill Lewis: Dana, what are we All Worked Up about today?

Dana DuPerron: Ooh we’re all worked up about the right to disconnect. 

Jill Lewis: Disconnecting!

Dana DuPerron: Let’s see, you’ve got some papers. This is a new thing right?

Jill Lewis: I’m like printing, like I almost printed 400 pages.

Dana DuPerron: You have a printer? What kind of a millennial are you?

Jill Lewis: I know! I do have a printer. I need –

Dana DuPerron: Oh that is setup for success.

Jill Lewis: I know God I am ancient yeah, but no I printed some of this stuff because I wanted to make sure we hit all the points. It’s new. This is brand new. What are we talking about here? The right to disconnect.

Dana DuPerron: Right so Ontario introduced this legislation saying that all employers with 25 employees or more have to have a policy as of June 2nd on the right to disconnect. 

Now as I understand it they have like 30 days after they implement the policy. After they like develop the policy to actually tell employees what that policy says.

Jill Lewis: Yes, 30 days. Oh I need to quiz you. That’s what we’re going to do.

Dana DuPerron: Don’t do that. Don’t do that! But, so employees may not necessarily know what their policy says yet. But, but there’s nothing that says what that policy has to contain. Like what that right to disconnect actually means. 

Jill Lewis: There is examples OK? So maybe you want to have something in there about answering emails after hours. Whether you’re required to answer emails after hours.

Dana DuPerron: But can you be required to answer emails after hours if you’re supposed to have a right to disconnect?

Jill Lewis: No?

Dana DuPerron: Yes you can because there’s nothing in the legislation that says what you can or cannot do!

Jill Lewis: So yes trick question. Yeah, dammit I’m losing already. Oh there’s a definition of disconnecting from work. Do you want me to read it?

Dana DuPerron: Yeah I do, I do.

Jill Lewis: OK, defined to mean not engaging in work-related communications including emails, telephone calls, video calls, or sending or reviewing other messages to be free from the performance of work. All right Dana this means you’re going to have to stop calling me in the evening. You’re going to have to stop texting.

Dana DuPerron: I don’t think it applies to lawyers. I think. I think they’re carved out.

Jill Lewis: Could you imagine to me not engaging in work-related communications?

Dana DuPerron: But that’s more like an expense review. Again In don’t think it applies to us but…

Jill Lewis: Well no I’m sure we’re excluded.

Dana DuPerron: And that’s an example. That’s just what the definition is.

Jill Lewis: No that’s just the definition. So as the list of work-related communications is inclusive, and not exhaustive other types of work-related commutions.

Dana DuPerron: Commutions?

Jill Lewis: Commutions, communications. So carrier pigeon OK.

Dana DuPerron: Fax.

Jill Lewis: Fax machines all right?

Dana DuPerron: I don’t have a printer, I certainly do not have a fax machine though.

Jill Lewis: Employers, you’re not going to be able to get around all this. It’s going to include everything.

Dana DuPerron: Well you are because…

Jill Lewis: Because of course you are.

Dana DuPerron: Doesn’t tell you what you can and can’t do, but – so OK we laugh because you know so you have to have this policy. It gives you examples of what the policy could be, but it doesn’t say this is what you have to do. And here is like a punishment, or a penalty for not doing it. 

And as I understand it in Europe they have – Europe just you know?

Jill Lewis: Europe, that big old continent over there.

Dana DuPerron: Broadly speaking I think France, and Germany.

Jill Lewis: Yeah, yeah and probably7 Sweden. They’ve got like, they’re the best.

Dana DuPerron: You know have like policies that have a bit more teeth. So in terms of an actual what it means for people is there should be something written down. Like there has to be a written policy that talks about what the right to disconnect means in your workplace. And I think that exercise on its own might be helpful. I hope.

Jill Lewis: Yeah, I mean I know we’re giggling about it and I guess it’s because we’re – we’ve been pretty jaded in this industry on like employer – OK, like the ESA, or any sort of – even sometimes Occupational Health coming out with these rules, the new policies that you have to you know you have to have a disconnect from work policy. Which is does sound great. Like of course we need to be able to disconnect. And we’re in a time right now and you know it is hard to disconnect when everybody’s attached to their phones and things like that. And they’re there to turn their mind to it.

Dana DuPerron: And they’re working at home so you don’t even have the physical separation between the workplace and your home.

Jill Lewis: Exactly.

Dana DuPerron: Like it’s the same place.

Jill Lewis: But when there are no teeth, like I’ve had people come to me on now I’m thinking Occupational Health and Safety. Because again it’s another one that’s kind of gotten a lot of scary rules with no real teeth to it. Like there’s not a lot of punishment there if an employer breaches any part of it.

Dana DuPerron: Now there are teeth. It’s just in terms of like, in terms of what the employee might be able to get as a financial remedy yeah.

Jill Lewis: That’s what I mean. So an employee comes to you and says my employer is not following the disconnect from work policy. I’d like you to write them a letter. And it’s like OK, great I will and you’ll spend a few thousand on legal and you’ll get nothing. Like no financial compensation back. I guess that’s what I mean on like financial punishment.

Dana DuPerron: Except.

Jill Lewis: OK, let’s hear it.

Dana DuPerron: So think about this then.

Jill Lewis: OK, what’s the scenario?

Dana DuPerron: If your employer has a policy. And your employment contract says that you are expected to be bound by their policy.

Jill Lewis: Yes, I like where we’re going.

Dana DuPerron: Those policies are kind of then incorporated into your contract right?

Jill Lewis: Feels like a term.

Dana DuPerron: As a term of your contract that they will do this.

Jill Lewis: Yeah, OK.

Dana DuPerron: If they don’t you know maybe you have a claim there for breach of contract. And then what do you get for breach of contract? It’s what you get if the contract had been performed. So can’t walk you through those damages right now, but maybe you have claims right for like overtime? Not necessarily – not statutory overtime which you only get after you work 44 hours per week, but maybe then I get paid for those hours of work that I was doing outside of work. 

Like because you were breaching your policy or something. Or you know there’s…

Jill Lewis: That’s good, creative lawyering over there.

Dana DuPerron: Yeah, so I mean that’s not in the legislation.

Jill Lewis: No, no this is what we do with these types of – exact same this as occupational health is the whole thing. Like the harassment policy wasn’t being – yes. So these are creative things that we can do.

Dana DuPerron: Yeah, we can work with these.

Jill Lewis: We can work with it, but…

Dana DuPerron: I think it’s more from a cultural perspective that if you see – if an employer sees that this is important to people, to their staff you know, everybody’s saying there’s this like war on talent right now, and employees have bargaining power and whatever. 

And you know that’s part of it right now, but it’s just also you want to have a happy workplace. You want to have good morale, you want to have good people. We’ve seen this thing in Europe. Back to Europe again.

Jill Lewis: That place of Europe, it’s very exotic.

Dana DuPerron: Yeah, it’s the UK right? Where they’re doing that – the like…

Both: Four day work week.

Dana DuPerron: Pilot project where you have to get done what you would have – like be as productive in four days as you would in five? Like you know maybe I think there’s something to be said for when people actually have a break, have a rest.

Jill Lewis: Oh my gosh yes.

Dana DuPerron: Are away from the workplace. Then when they’re actually doing their work you know I mean I’m not a sociologist but that’s like you know more committed. That’s my understanding from things that I’ve read whatever. 

So I think that culturally there’s reasons why employers would want this to like attract talent, keep people happy, have maybe a more productive workforce. Even if it doesn’t say that you have to not be answering things between this hour and this hour. 

Now another criticism I’ve seen is that you know it may not be necessary because we have protections in the ESA for you know working over. Like if you’re working you should be getting paid for it. Like maximum hours of work, and overtime pay, and like minimum wage and those types of things that already sort of cover off not working around the clock. 

But let’s face it. A lot of people are not – like you’re on your phone sending an email in the evening or whatever. And you’re not thinking.

Jill Lewis: You’re not docketing for that yeah.

Dana DuPerron: Well I’m not thinking about us because we’re – 

Jill Lewis: OK, sorry, sorry that’s…

Dana DuPerron: – you know excluded from most of those things but like…

Jill Lewis: You’re not telling your employer I spent 15 minutes in the evening [unintelligible [00:08:40]

Dana DuPerron: Yeah, you’re not doing it. 

Jill Lewis: You’re not capturing and that should change. And so I know I guess I’m being like really, yeah.

Dana DuPerron: Making light sort of yeah.

Jill Lewis: I’m making light of it, I’m poking, but it is true. And I support the whole four-0day work week, and detaching from work. Like I don’t check my work emails in the evenings at all. Like I have that app like totally off my phone. All of those little bits and pieces I think really help. I just get, you know concerned that this is a minor step that we’re taking. And then it…

Dana DuPerron: A missed opportunity?

Jill Lewis: Yeah, yeah and I guess, I hope employers will take it seriously. I guess that’s what I’m hoping to see is that employers actually take it seriously. And that they want to follow it. Because I think there is science behind being disconnected from work and having a happier workforce. And like don’t you want to avoid burnout?

The amount of people that come to see us who need to apply for like short and long-term disability based on – 

Dana DuPerron: Burnt out yeah.

Jill Lewis: – Like total burnout I think is great. So I hope that employers take it seriously. I think that it’s an investment and I think they really, if they could really treat it as such they could see – and the biggest piece though, sorry I’m like going on a tangent is it’s got to start from the top.

Dana DuPerron: It’s liken you read my mind. I was just thinking that. Because what I was going to say is maybe the bigger thing is not even sending those emails after. Even if you don’t expect a response. Maybe as the manager you don’t send that email at 9:00 and then your employee’s like oh I’ve got to answer at 9:30. And you didn’t even expect that from them. Maybe put it on a delay to send like you know at 7:00 in the morning or something.

Jill Lewis: I might – my email started doing that. OK sometimes I’m answering emails at like 5:30 a.m. and that’s not because I am just such a hard worker. It’s just that is, my house we wake up at 8:35 sometimes.

Dana DuPerron: No, I hear you, I hear you.

Jill Lewis: Yeah, so sometimes I am sending, if I got that quick like I’ll send a couple emails and they’ll be like eh, the little pop up that’s like do you want to send this at a reasonable hour?

Dana DuPerron: Really?

Jill Lewis: It just started doing that. Would you like to send this at a reasonable hour? I can’t remember the actual language, 8:00 a.m. I’m like 8:00 a.m.? I feel like Kris Jenner from the Kardashians. She’s like 7:00 a.m.? It’s almost lunchtime! Like 8:00 a.m.? No. And I’ve done that a few times. How bad is that? I’ve been like no they should know I’m [unintelligible [00:11:01] at 5:30.

Dana DuPerron: Well you can get it out.

Jill Lewis: It’s because I wanted to get it out. I want them to know sometimes that I am thinking of you as like a client, it’s a client.

Dana DuPerron: But the client might be waiting too. Like you’re up at 5:00 they could be waiting.

Jill Lewis: Even when I said no it was because it was a client and I…

Dana DuPerron: You’re providing the service to them. It’s not like you’re…

Jill Lewis: And I want to get it to them ASAP.

Dana DuPerron: Yeah, and I’ve also seen other people’s email like blocks whatever, it’s not really the signature line. Whatever thing at the bottom. You know some people have a quote that’s like “oh the places you’ll go” or whatever? But then there’s like, there’s other things that you can have. 

Anyway I have seen my hours are not a self-love thing. 

Jill Lewis: It’s like are we just quoting Dr. Seuss at the end of our emails?

Dana DuPerron: Might as well.

Jill Lewis: The Cat in the Hat. Could I eat it on a train? Could I eat it on a plane?

Dana DuPerron: Oh, anyway all that to say I have seen email blocks that say I don’t work the same hours as you necessarily. Like just because I’m writing this now doesn’t mean I expect a response.

Jill Lewis: I don’t think I’ve seen that.

Dana DuPerron: I have and I think it’s interesting.

Jill Lewis: That’s hilarious yeah. I’m going to start writing like I’ve seen your email. I do not care. I’ll respond – no I’m sorry. [Laughs] Oh man I’m going to have a call from HR tomorrow. Jill we need to talk.

Dana DuPerron: Absolutely, and so that’s it right? The policy’s out as of you know beginning of July, whatever 30 days from June 2nd is?

Jill Lewis: OK so you’ve got to have a policy.

Dana DuPerron: Yeah, there’s got to be a policy. You can take a look at it, see what it is.

Jill Lewis: It doesn’t matter what’s in it.

Dana DuPerron: If you have 25 employees or more. Yeah?

Jill Lewis: Yeah, and 25 employees ooh OK so there’s some more trivia, 25 employees includes like anyone and everyone. So full-time, part-time, interns, casuals. I’d go ahead and call that contractor, whoever that contractor is just assume that they’re an employee and count them in. Those will all…

Dana DuPerron: Don’t assume the contactors are employees. Only for the purposes of counting your staff not…

Jill Lewis: Only for the purposes of counting staff thank you. Yeah, you just gave me my disclaimer today. I’m just like on a tangent. Yeah, so OK so you have to include everybody in there, the 25 employees. And then every January 1st you got to do a fun little exercise. Where you count your employees.

Oh, and I have a little…

Dana DuPerron: To make sure that you have the policy if you need it. If you didn’t need it in the past, if you weren’t a 25-person workplace.

Jill Lewis: Exactly, to do that count again January 1st you have to double-check. And if you have multiple locations. So Dana if I own a sandwich shop, if I own three sandwich shops in Ottawa and I have 10 employees in each sandwich shop. How many employees do I have for the purposes of this legislation?

Dana DuPerron: 30.

Jill Lewis: Oh good! So it includes everyone.

Dana DuPerron: You didn’t know I was a math whiz too.

Jill Lewis: So it includes everyone there. Yeah, I think that’s really it. I mean OK, so OK if you want to take it seriously I mean here’s your plug – 

Dana DuPerron: I do.

Jill Lewis: – for the law firms is you should have it written professionally by somebody who is in HR. I mean you don’t have to go to a lawyer. You should go to a lawyer. You should go to Nelligans, but if you don’t want to there is HR. There’s like professionals that like do – just go and talk to somebody. Don’t pull something off the internet. My God stop pulling stuff off the internet.

Spend a little money on a proper policy that’s going to be followed properly as well. And it’s going to – oh it has to have like the proper dates and stuff on it. Like just don’t…

Dana DuPerron: Just put a little bit of thought into it in terms of like just because it doesn’t necessarily like you know it’s not like oh I’m going to get fined like you know $100,000 if I don’t do this, or have it say this or whatever. 

But like think about what you want it to mean for your workplace. Because I do think that there’s value to be had just even in – we’ve said it before review your policies. Think about your policies, have your lawyer look at them. Policies more broadly across the board, it’s not something you do once and you just never do again. It’s worth thinking about how your workplace operates and what’s governing it.

Jill Lewis: And then like and how to put it into action. And that’s going to be on employers. That’s where I get back to this like I’m a little jaded because I feel like employers aren’t going to take that effort.

Dana DuPerron: I think a lot will. 

Jill Lewis: Yeah, I’m hopeful and I think the way you do it is from the top down. So the managers, the CEOs like are going to have to yes, either stop sending emails in the evenings or put the delayed – that’s an easy one. Like if you’re going to…

Dana DuPerron: Like a signature block and actually mean it.

Jill Lewis: Signature block yeah I mean I guess that’s yeah.

Dana DuPerron: I’ve sent this. Don’t need your response until you’re in, in the morning or whatever.

Jill Lewis: Yes, exactly and yeah you’ve got to practice what you preach.

Dana DuPerron: Yeah, yeah assume people aren’t even seeing it right?

Jill Lewis: There you go.

Dana DuPerron: Anyway, so that’s that. The right to disconnect, it’ll be interesting to see how this unfolds.

Jill Lewis: Yeah, yeah but I mean it’s a good step forward. Love to see. And you know if you’re an employer and you need a policy, like go talk to a lawyer and get something drafted. Something well-drafted, and if you’re an employee and you’re in a situation where your employer is not following their policy then talk to an employment lawyer.

Dana DuPerron: Yeah, there you go.

Jill Lewis: OK, bye!

Dana DuPerron: Bye!

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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