On December 2, 2021, Bill 27: Working for Workers Act, 2021 (the “Act”) received Royal Assent and became law in Ontario.
This law created new obligations for Ontario employers. One of the most notable requirements brought on by the Act is that employers with 25 or more employees must implement a written disconnecting from work policy at their business by June 2, 2022.
This blog answers some of the most frequently asked questions Ontario employers may have about the right to disconnect policy.
How is right to disconnect defined?
The Act defines disconnecting from work 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.”
Do all employers have to implement a right to disconnect policy?
No. Only provincially regulated employers in Ontario with 25 or more employees on January 1st of that year must implement a right to disconnect policy at their workplace.
When counting employees, employers must consider several different aspects. First, where an employer has multiple locations, all employees employed at each location in Ontario must be included when determining whether the 25-employee threshold has been met.
Employers must also count all employees including employees on fixed-term contracts of any length, employees who are on temporary layoff or a leave of absence, and even certain trainees if they meet the definition of “employee” under the Employment Standards Act.
What if the number of employees increases throughout the year?
If on January 1st, the employer employs less than 25 employees in Ontario, then the ESA does not require that the business have a right to disconnect policy in place. This remains the case even if the employer’s employee count increases at a later point in the same calendar year.
For example, if an employer employs 20 employees in Ontario on January 1, 2022, the requirement to have a written policy in place on disconnecting from work does not apply. If the employer then hires five more employees in May 2022, this employer continues to not be subject to the requirements to have a written policy in place for 2022.
However, if all 25 employees remain employed by that employer on January 1, 2023, the employer would meet the 25-employee threshold on January 1, 2023, and will be required to have a right to disconnect policy in place for all employees before March 1, 2023.
What if the number of employees decreases throughout the year?
If an employer employs 25 employees or more in Ontario on January 1st (and as a result the requirement does apply) and their employee count decreases later in the same calendar year, the employer is still obligated to have a right to disconnect policy in place. This is the case until the assessment of the “25-employee threshold” is done again the following January.
If the employer employs fewer than 25 employees the following January 1st, the obligation to have a right to disconnect policy does not apply for that calendar year.
The implementation date for the policy this year is June 2nd instead of March 1st, why?
The Act states that employers have until the date that is six months after December 2, 2021 (the date of Royal Assent) as a transition period to implement the right to disconnect policy. After the transition period ends (January 1, 2023), employers with 25 or more employees on January 1st of each year will have until March 1st of that year to implement the policy.
Do employers have to provide a copy of the right to disconnect policy to their employees?
Yes. Employers that are required to have a right to disconnect policy in place must provide a copy of the policy to their employees within 30 calendar days of the policy being prepared or when the policy is changed. The employer must also provide a copy of the right to disconnect policy to any new employees within 30 calendar days of the employee being hired.
However, the employer does not need to provide a copy of the right to disconnect policy to employees annually if the policy has not changed from the previous year.
Does the right to disconnect policy apply to all employees?
Yes. The right to disconnect policy must apply to all the employer’s employees in Ontario. This includes management, executives, and shareholders if they are deemed employees under the ESA. The employer would be breaching the requirements of the ESA if its policy only applied to some of its employees (for example, if the policy applied only to the employer’s sales staff but not its managerial staff).
However, this doesn’t mean that the employer is required to have the same policy for all its employees. The employer can have a single policy that applies to all employees, or its policy can contain different policies (either in a single document or in multiple documents) for different groups of employees. For example, a retail employer may decide to have one policy that applies to its office staff and a different policy that applies to its in-store sales staff.
What should a right to disconnect policy contain?
A right to disconnect policy should contain:
- The employer’s expectations, if any, of employees to read or reply to work-related emails or answer work-related phone calls after their shift is over.
- The policy may set out employer expectations for different situations. For example, the policy may contain different expectations depending on:
o the time of day of the communication
o the subject matter of the communication
o who is contacting the employee (for example, the client, supervisor, colleague)
- The employer’s requirements for employees turning on out-of-office notifications and/or changing their voicemail messages, when they are not scheduled to work, to communicate that they will not be responding until the next scheduled workday.
What are the potential benefits of a right to disconnect policy?
A right to disconnect policy benefits both employees and employers. Employees who have the right to disconnect from work may choose to spend more quality time with family and friends, complete other household tasks and chores, join an after-work sports league, or simply relax and destress after a busy day.
For employers, the right to disconnect may result in happier and more productive employees. Retention levels may improve, and employee morale will increase as well.
What are the potential harms of a right to disconnect policy?
While there are real benefits of having a right to disconnect policy, there are also potential consequences.
One potential harm brought on by implementing a right to disconnect policy is that it could conflict with company policies pertaining to flex hours. With many employees continuing to work from home, some businesses choose to allow their staff to work flexible hours. These policies allow employees to take some time off during the workday and make up hours in the evening – for example, a busy parent may choose to take time out of their day to pick their children up from school, cook dinner, eat as a family, and continue working later in the evening.
A right to disconnect policy could directly conflict with a flexible hours policy, as employees are highly encouraged to take time to disconnect from work by refraining from sending or reviewing any work-related correspondence outside of regular work hours.
Additionally, for some employees, a right to disconnect policy could lead to constructive dismissal claims. Some employees, either by choice or necessity, continue to work outside of regular work hours. This means that instead of working a typical 40-hour work week, some employees may work upwards of 50 or 60 hours a week to stay on top of their tasks.
When an employer implements a right to disconnect policy, it may create a fundamental change to an employee’s hours of work and pay (if they are working beyond the overtime threshold), which could result in the employee claiming constructive dismissal.
Reposted from Peninsula Canada