Disconnecting from Work: Do we have all the information we need?

December 13, 2021

Martin Ejidra

An unintended consequence of the COVID-19 pandemic was a move to remote working and more flexible work arrangements. For many, this shift has blurred the lines between home and office, as remote working and technology continue to make it easier to work from almost anywhere. As a result, the need to develop policies dealing with balancing this “new normal” with work-life balance has become more important. The Government of Ontario recently introduced new legislation which purports to do just that.

On December 2, 2021, the Working for Workers Act, 2021 (“the Act“)  received Royal Assent. Among the numerous changes to various labour and employment related laws was the introduction of a requirement, under the Employment Standards Act, 2000 (“ESA, 2000”), that employers have a written policy with respect to disconnecting from work. 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”. This new requirement has been heralded as giving workers the right to disconnect from work – however, there are still a number of open questions that employers and employees, alike, should consider as we approach the compliance date:

What is the right to disconnect, exactly?

The Act does not actually prescribe a stand alone right to disconnect from work for employees. Instead, it imposes a positive obligation on employers (with 25 or more employees) to put into place a policy concerning disconnecting from work within 6 months of the date the Act receives Royal Assent (December 2, 2021) . The language of the Act describes disconnecting from work as related to a narrow set of tasks – namely work-related communications. The Act does not address other tasks that employees may find themselves doing outside of work hours and which many would consider the “performance of work”. It is unclear whether tasks like reviewing documents, drafting presentations, or other work-related activities will be considered the “performance of work” as contemplated under the Act.

What happens when an employee can’t disconnect?

The Act is also silent on what occurs when an employee is unable to disconnect from work, or required to engage in the performance of work contrary to a policy. If the Act is meant to provide for a boundary between work and the creation of work-life balance, then it seems reasonable to assume that where that goal is not achieved some form of compensation may be required. However, the language of the Act provides no guidance in that regard and to date government officials have not elaborated on what will happen in these situations.

What about enforcement?

While on its face, the Act does not directly address the question of enforcement, it is important to remember that it is an act amending the ESA, 2000. Therefore, alleged breaches of the provisions concerning disconnecting from work may be the subject of a complaint under section 96 of the ESA, 2000.

What steps can employers take now to prepare?

• While there is presently no direction on what information should be included in a disconnecting from work policy, the Act indicates that it “shall contain such information as may be prescribed”. This is foreshadowing the likely introduction of regulations that employers should keep an eye out for regulations as they prepare to develop a policy.
• It will be important that workplace policies concerning disconnecting are clear about what tasks, beyond those explicitly listed in the legislation, employees will be exempt from performing outside of work hours. Consider what, if any tasks, outside of those outlined in the Act, might form part of your policy.
• Consider what forms of compensation you might provide to employees who cannot disconnect, if required. Would such compensation be in the form of overtime, lieu days or some other arrangement?
• Remember that breaches of the Act are subject to the enforcement mechanisms prescribed in the ESA, 2000. Do your best to ensure you are compliant within 6 months of December 2, 2021 to avoid liability under the ESA, 2000, and revisit your policy and practices frequently to ensure ongoing compliance.
• Do not forget to seek legal advice to assist with drafting and or implementing your policy.

 

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