As we previously reported, the Ontario Employment Standards Act, 2000 (ESA) requires that employers with 25 or more employees have a written policy addressing “disconnecting from work” in place by June 2, 2022. The legislative amendments were described in our previous blog post.

The ESA itself provides very little information on the required contents of a disconnecting from work policy. As it currently stands, it does not appear as though the legislature will be providing additional guidance in this respect.

That said, the Ministry of Labour recently updated its Guide to the Employment Standards Act (the Guide) to address this issue. Although the Guide is not legally binding, it does represent the Ministry of Labour’s policy approach to this issue, and it provides helpful information for those employers faced with drafting a disconnecting from work policy.

Key take aways from the Guide are summarized below.

What type of employers are required to have a disconnecting from work policy?

Any employer that employs 25 or more employees (as of January 1 in any year) is required to have a “disconnecting from work” policy for that year. The Guide indicates that the 25-employee threshold is determined with reference to the number of employees in Ontario. It does not include employees working out of province.

Employees at all Ontario locations of a particular employer are considered cumulatively in determining whether the 25-employee threshold is met. This means that employers with multiple locations must count all employees employed at each location when determining whether the threshold has been met. All employees are to be included in the count, regardless of their hours of work or position.

What does “disconnecting from work” mean?

“Disconnecting from work” means “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”.

Do employees now have a “right to disconnect” from work?

No, the ESA does not create a “right” to disconnect from work. The ESA creates only the requirement to have a policy “with respect to disconnecting from work”. The Guide provides clear direction on the absence of any legislated right to disconnect:

[T]he ESA does not require an employer to create a new right for employees to disconnect from work and be free from the obligation to engage in work-related communications in its policies. Employee rights under the ESA to not perform work are established through other ESA rules. [emphasis added]

What should a “disconnecting from work” policy include?

The only statutory requirements for a disconnecting from work policy are:

  • the policy must be in writing;
  • the policy must address “disconnecting from work”, as defined in the ESA (set out above);
  • the policy must include the date the policy was prepared and the date of any changes made to the policy; and
  • the employer must provide a copy of the written policy to each employee within 30 days of preparing the policy, or within 30 days of employment (for new hires).

Outside of those requirements, employers are free to craft their policies as they see fit. Examples of issues that could be addressed in a disconnecting from work policy include:

  • the employer’s expectations (if any) regarding reading or responding to work-related communications outside of an employee’s regular working hours;
  • the employer’s expectations (if any) regarding the use of “out-of-office” automatic replies or other electronic features (e.g. “delay delivery” on e-mails, vacation alerts) to help employees establish and maintain boundaries between working and non-working hours;
  • the employer’s expectations (if any) to be “online” on company instant-messaging platforms; and/or
  • the employer’s emergency procedures with respect to situations when work-related communications may be necessary during non-working hours.

Ultimately, the content of a disconnecting from work policy should be informed by an employer’s particular business needs and workplace culture. The policy may have different expectations for different categories of employees. Employers may wish to consider consulting with employees or the workplace health and safety committee to understand their perspectives on disconnecting from work. Unionized workplaces should consider consulting with their union(s), and that consultation may in fact be required under the terms of the collective agreement.

Does the policy have to apply to all employees?

Yes. Although the ESA’s regulations exempt managers and other specified employees from certain parts of the ESA, including hours of work and overtime, currently there is no exemption applicable to the disconnecting from work provisions of the ESA. The Guide emphasizes that the requirement to have a policy on disconnecting from work applies with respect to all employees, including management and executives.

However, the policy does not have to be the same for all employees. An employer may include different parameters for different categories of employees within the same policy, or choose to have different policies for different groups of employees.

How will the Ministry of Labour enforce a disconnecting from work policy?

The ESA does not set out any particular enforcement mechanisms for disconnecting from work policies. The Guide indicates that such a policy is generally not enforceable under the ESA, unless it creates a greater right or benefit than an employment standard under the ESA, in which case that greater right or benefit may be enforceable under the ESA. However, despite the absence of statutory enforcement mechanisms under the ESA, in unionized workplaces a union may be able to file a grievance in relation to an alleged violation of the disconnecting from work policy.

What is the deadline to draft the policy?

Employers with 25 employees in Ontario as of January 1, 2022 must have a disconnecting from work policy in place by June 2, 2022.

Thereafter, any employer who has 25 employees in Ontario as of January 1 of any given year, must have a written disconnecting from work policy in place by March 1 of that year.

Employers must provide a employees with a copy of the written policy within 30 calendar days of the policy being prepared. New employees must receive a copy of the policy within 30 calendar days of being hired. If the employer makes changes to the policy in the future, the employer must provide a copy of the updated policy within 30 calendar days of the changes.

What if I have more questions or would like to access a template policy?

For more information about disconnecting from work policies, including a template policy, please contact Samantha Cass, Tiffany O’Hearn Davies, Sam Keen or your regular Norton Rose Fulbright lawyer.

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