On December 2, 2021, the Ontario government introduced the “Right to Disconnect”policy in the Employment Standards Act, 2000. Employers that employ 25 or more employees are required to have a written policy on disconnecting from work in place for all employees. They are also required to provide a copy of the written policy to all employees.
The Employment Standards Act, 2000 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.” This is not an exhaustive list, meaning that other forms of work-related communications can also fall under this definition.
The goal of the right to disconnect law is to allow employees to “disconnect” from work and enjoy downtime. Ideally, the ability to disconnect from work will protect an employee’s mental well-being and avoid burnout.
What a Right to Disconnect Ontario Policy Might Say
The new rules say an employer must create a policy on disconnecting from work, but do not say what the content of that policy must be. The employer determines the content of the policy all on their own. It is likely that a right to disconnect policy would address when an employee is permitted to stop reading or replying to work-related emails. It may also say when an employee is permitted to ignore work-related phone calls. However, the policy could also introduce exceptions to these general rules, meaning that an employee might be required to answer phone calls after work hours if the call is coming from a very important client.
In the end, it is all within the company’s discretion, and there is no one-size-fits-all approach to drafting a right to disconnect policy. It will often depend on the particular needs of each company.
Enforcement of Right to Disconnect Ontario
Unfortunately, the Ontario government has not implemented an enforcement mechanism for these new rules. Furthermore, requiring only that a policy exist without regulating the content of the policy means employers can create vague or unhelpful policies that do not meet the purpose of having a right to disconnect.
Employees who opt to make use of their right to disconnect also face risk and are not protected by the new legislation. For instance, an employer might look more favourably on an employee who continues to answer work-related communications after hours than an employee who exercises their right to ignore such communications. This employee might be overlooked for a promotion, for instance.
The Right to Disconnect an Optimistic Sign
While the new legislation may not yet have teeth, it nevertheless is a step in the right direction. It recognizes the realities of today’s workplace, which is more digital and virtual than ever before. While there is no sign yet that the legislation will be improved, it is possible this legislation may serve as a stepping stone for more impactful and employee-friendly legislation in the future. It may even be the case that a similar legislation will be introduced federally, which would be good for employees working under the Canada Labour Code.
This was written by Shane Burton-Stoner, an Employment Lawyer at Monkhouse Law. Monkhouse Law is an employment law firm located in Toronto with a focus on workers’ issues. Give us a call at 416-907-9249 or fill out this quick form. We offer a free 30-minute phone consultation.
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