With the implementation of smartphones and electronic communications technology, the modern workplace has become increasingly mobile. With remote working technology, there has been a growing demand for employees to be constantly available online. To protect and re-establish work-life balance in Canada, the Federal government has sought the recommendations of an Advisory Committee with respect to an employee’s right to “disconnect from work” during certain hours of the day. The aim of this committee is to create recommendations to regulate the right to disconnect from work in federally regulated private sector employment.
According to Statistics Canada, up to 40% of the Canadian workforce began working from home due to public health restrictions introduced during the COVID-19 pandemic in 2020. This is a substantial departure from the 8% of employees who worked some portion of their schedule remotely in 2018. Generally, employees and employers are in agreement that remote working arrangements are favorable and are likely to stay around even after public health measures are lifted. While there are many benefits to remote work, the perceived inability to disconnect from work has been cited as the most reported concern from the perspective of employees.
Canada Labour Code Provisions for Work-Life Balance
The Canada Labour Code has existing provisions with respect to work-life balance. Paid overtime is an example of this kind of regulation. If answering after-hours communications creates further paid work time, and that work time exceeds 40 hours a week, the employee would be entitled to overtime pay for hours in excess of 40. The Code also sets an upper limit of 48 hours for a week. An employee will not be required to respond to communications if it means that they will be forced to work more than the federal maximum of 48 hours in a week. Other protections offered to employees under the current regime include a guaranteed 8 hours between shifts or work periods, at least one day of rest per week and the right to refuse overtime work if the overtime work would require arrangements to be made for family responsibilities. While these protections are in place, remote work arrangements have created a need for more robust protection of employee private time.
Right to Disconnect Canada
The Final Report of the Right to Disconnect Advisory Committee for federally regulated employees ultimately reached the following recommendations, and a commitment to “co-develop new provisions with employers and labour groups that give federally regulated workers the ‘right to disconnect’:
- Employees should be paid for all work performed
- Work-life balance is a key goal for employees and employers
- Flexibility is required for both workers and employers
- Health and safety needs to be protected and some communications between employer and worker are critical
- Absolute limits (ie. shutting down email servers) may not be realistic
- Regulations should recognize the varied nature of federally regulated workplaces
- Any policies should be clear
- The privacy and security of the workers needs to be protected
Ultimately, the committee concluded that the most effective way to implement this policy would be to update the legislation to mandate right to disconnect policies. The updates to the legislation would need to consider the variation of federally regulated workplaces as well as the emergency or critical nature of certain workplaces. This means that a legislated solution cannot be a “one-size-fits-all” solution but must be tailored to respond to the unique circumstances of individual workplaces. Another crucial feature of such legislation would be mandated protection from reprisal, to ensure that workers will not face negative consequences for enforcing their right to disconnect under the legislation.
In Contrast: Current Policy on Ontario Right to Disconnect
This approach stands in contrast to the Ontario government’s recent update to the Employment Standards Act. Under Ontario Law, employers with more than 25 employees are simply required to have a right to disconnect policy in the workplace but does not prescribe any terms that need to be in the policy. This means that a policy could be compliant with the legislation even if that policy requires employees to be available 24/7 and does not meaningfully protect the right to disconnect.
This was written by Walter Yoo, Employment Lawyer at Monkhouse Law. Monkhouse Law is an employment law firm in Toronto with a focus on workers’ issues. If you believe your workplace rights are being violated, give us a call at 416-907-9249. We offer a free 30-minute phone consultation.