On December 2, 2021, the Ontario government passed the Working for Workers Act, 2021, previously known as Bill 27. The Act amends Ontario employment legislation, including the Ontario Employment Standards Act, 2000 (the “ESA”). One of the changes garnering significant attention is the introduction of new provisions concerning an employee’s right to disconnect from work. So, what do the new provisions say (and not say)?
1. The Basics
Employees and employers alike may be surprised to learn that the new provisions don’t actually create a substantive right to disconnect for employees. The same hours of work provisions that have been in the ESA for many years continue to apply. The only difference is that employers must introduce a policy on (not a right 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.”
Employers are required to implement the written policy by March 1st (though for 2022 this deadline has been extended to June 2). The policy must then be provided to employees within 30 days of its creation or, if an existing policy is changed, within 30 days of the changes.
The policy requirement only applies to those employers with 25+ employees on January 1 of any year. It is also provincial legislation and so does not apply to federally regulated employees.
3. Policy Details
The ESA does not specify what must be included in the policy and the Ministry of Labour (the “Ministry”) has provided limited guidance. Specifically, the Ministry has stated that policies need only set out:
- Information on the employer’s expectations on disconnecting form work;
- The date the policy was prepared; and
- The date of any changes made.
The Ministry has also provided examples of additional topics that could be covered in a policy, including:
- The employer’s expectations, if any, regarding reading or replying to work-related emails or answering work-related phone calls after the employee’s shift is over;
- Whether the employer’s expectations shift based on the time, subject matter and/or sender of the communication; and
- The employer’s requirements, if any, regarding out-of-office notifications when an employee is not scheduled to work.
Karimjee Law is continuing to monitor further changes to the ESA, guidance from the Ministry, and commentary on this topic and is pleased to advise employers on implementation.