After much anticipation, the Government of Ontario has released some guidance on the recent amendments to the Employment Standards Act, 2000 (“ESA”) that require certain employers to implement written disconnecting from work policies.
Employers that employ 25 or more employees on January 1, 2022 have until June 2, 2022 to have a written policy on disconnecting from work implemented. From 2023 onwards, employers that employ 25 or more employees on January 1 of any year must have a written policy on disconnecting from work in place before March 1 of that year.
The guidance specifies that the requirement to have a policy in place does not mean there is a free-standing right for employees to disconnect from work or be free from the obligation to engage in work-related communications. In other words, these amendments to the ESA do not create a prohibition on communicating to employees. Rather, the requirement is to have a written policy in place with respect to disconnecting from work, which is defined to mean not engaging in work-related communications, including emails, telephone calls, video calls or sending or reviewing other messages, in order to be free from performing work. The employer determines the content of the policy itself and the ESA does not specify the information the employer must include in the policy, other than the requirement to include the date the policy was prepared and the date any changes were made to the policy.
Here are some examples of what a disconnecting from work policy may include:
- Encouragement that employees disconnect from work outside of their regular working hours.
- 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:
- the time of day of the communication
- the subject matter of the communication
- 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 work day.
The guidance notes that employee rights under the ESA to not perform work are established through other ESA rules, such as the rules related to hours of work and eating periods, vacation with pay and public holidays.
The Government highlighted the following procedural requirements that employers must consider when preparing their policy:
- The written policy on disconnecting from work must apply to all of the employer’s employees in Ontario who are subject to the ESA. This includes management, executives and shareholders if they are employees under the ESA.
- However, the employer is not 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.
- The policy may be a stand-alone document or it may be part of another document
- Employers must provide a copy of the written policy to all employees within 30 calendar days of 1) the policy being prepared and 2) the policy being changed. However, the employer does not need to provide a copy of the written policy to employees annually if the policy has not changed from the previous year.
- The employer must also provide a copy of the written policy to any new employees within 30 calendar days of the new employee being hired.
- When determining whether an employer has 25 employees, it does not matter whether the employees are part time or casual, or whether the employees work in different locations. All employees in Ontario must be counted, including:
- probationary employees
- some trainees
- officers of a corporation who perform work or supply services for wages
- employees on definite term or specific task contracts of any length
- employees who are on lay-off, so long as the employment relationship has not been terminated and/or severed
- employees who are on a leave of absence
- employees who are on strike or who are locked-out
- employees who are exempt from the application of part(s) of the ESA
- assignment employees of temporary help agencies if the temporary help agency has met the 25-employee threshold
- The requirement to have a written policy in place is determined as per the number of employees on January 1 of every year, even if the number of employees subsequently fluctuates such that the employer has more or less than 25 employees later in the 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, even if they hire 5 more employees shortly thereafter. 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 written policy on disconnecting from work in place for all employees before March 1, 2023.
- Employers must retain a copy of every written policy on disconnecting from work that was required by the ESA for three years after the policy is no longer in effect.
- If the employer’s written policy on disconnecting from work creates a greater right or benefit than an employment standard under the ESA, that greater right or benefit may be enforceable under the ESA. If the employer’s policy on disconnecting from work does not create a greater right or benefit, the policy is not enforceable under the ESA.
The Government’s guidance provides important procedural guidelines to be followed when employers are 1) determining whether they require a disconnecting from work policy and 2) preparing and maintaining the policy, if it is required. However, the specific contents of the policy and the rules surrounding disconnecting from work, if any, are left to the employer’s discretion, provided that it complies with all other ESA rules. Employers are encouraged to seek legal counsel when drafting their disconnecting from work policies to ensure it remains compliant with the ESA. The lawyers at Heeney Vokey LLP would be more than happy to assist with this.