March 17, 2022
by Israel Foulon LLP

Summary

The Ministry of Labour has recently updated the Guide to the Employment Standards Act, 2000 (the “Guide”) to provide further detail on what employers can include in their written policy on disconnecting from work (the “Policy”). For clarity, the recommendations in the Guide are not legally binding, but are merely suggestions from the Ministry of Labour. As of the date of this article, the government has not passed any regulations to the Employment Standards Act, 2000 (the “ESA”) relating to disconnecting from work, nor has the ESA been further amended to add any such legal requirements.

We previously wrote two detailed e-bulletins on the requirement for employers to have a disconnecting from work policy, if they have twenty-five or more employees in a given year. You can review the first e-bulletin from October 27, 2021 HERE, and the second e-bulletin from December 6, 2021 HERE. 

You can also review the relevant section of the Guide HERE.

No New Right to Disconnect

The Guide states that even though employers are required to create a Policy, the Policy does not create a new right to disconnect from work for employees. Employees’ rights regarding disconnecting from work are already detailed in the ESA. For example, under the ESA, employees are entitled to a minimum amount of paid vacation per year as well as time off for public holidays, are subject to limits on hours of work per day and per week, and are entitled to certain hours free from work, and eating/rest breaks.

Employer Determines Content of Policy

Other than the minimum requirements detailed below, the ESA does not specifically state what information must be included in the Policy or the minimum length of the Policy.   According to the ESA, businesses who employ twenty-five or more employees (as of January 1^st of any year) must create and implement a policy with respect to disconnecting from work by June 2, 2022. It must include the date the policy was prepared and any revision dates, and that employees must receive a copy of the policy within 30 days of preparing said policy (or within 30 days of a new employee starting work). Disconnecting from work is defined 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.” A record of the Policy must be kept for three (3) years after it is no longer in effect. The Guide specifically states that the employer determines the content of the policy, which should be based on the specific needs of the workplace and the employees. The Guide notes that the Policy does not have to be the same for all employees. For example, an employer may create one policy for managers and another for line workers.

Greater Right or Benefit than ESA

Employers can include provisions in the Policy providing a greater right or benefit than the ESA provides. For example, an employer can create a right for a worker not to perform work where the ESA would otherwise require or permit the employee to work. Unless the Policy amounts to a greater right or benefit under the ESA, no enforcement action can be taken by an employment standards officer. Employers should contact us to ensure that any such provision is properly drafted as it may be enforceable under the ESA, or under contract or common law, and could result in liability if breached.

Examples of Policy Content

The Guide includes the following examples for what may be included in the Policy:

• The employer’s expectations, if any, of employees to read or reply to work-related emails or answer work-related phone calls after their shift is over.

• The policy may set out employer expectations for different situations. For example, the policy may contain different expectations depending on:
  • the time of day of the communication
  • the subject matter of the communication
  • who is contacting the employee (for example the client, supervisor, colleague)

• The employer’s requirements for employees turning on out-of-office notifications and/or changing their voicemail messages, when they are not scheduled to work, to communicate that they will not be responding until the next scheduled work day.

Take Away for Employers

We recommend you contact us to assist with implementing your workplace disconnect policy in order to ensure the policy is reasonable and in compliance with the requirements under the ESA. We urge you to proceed with caution if you choose to include a greater right or benefit in your Policy than what is provided by the ESA, as it may increase liability for your workplace.

Israel Foulon Wong’s Response to COVID-19

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