Guidance – The Right To Disconnect Policy For Employers

In December 2021, the Ontario Government introduced legislation providing workers with the “Right To Disconnect” from work with the Working for Workers Act, 2021. The legislation requires employers to have a written policy on disconnecting from work for all employees outside of working hours, including any digital communications channels such as emails, phone calls and smart phones.

As discussed in an earlier article, there was little or no guidance provided to employers when the legislation was first introduced, leaving employers with a lot of unanswered questions. The Ministry of Labour has now published guidance to address some of these gaps as follows:

• Employers who had 25 or more employees on January 1^st, 2022, are now required to establish a written policy on the right to disconnect from work and provide a copy to all employees no later than June 2^nd, 2022.
• Beginning 2023 and each subsequent year, employers who have 25 or more employees in Ontario as of January 1^st, must have a policy in place no later than March 1^st of that year.
• The ESA requires employers to count “all employees” to establish the 25-employee threshold, to include all full-time, part-time, and fixed term employees as well as those that are on leave or a temporary lay-off. This does not include workers assigned by temporary help agencies.  
• The obligation to establish a written policy is determined by the number of employees counted on January 1^st of each year. If the number of employees increase or decrease later in the year, an employer’s obligations are not impacted. For example, if the employer had 20 employees on January 1^st, but later in the year hired another 6 employees, the employer is not required to implement a policy for that year. However, if they continue to employee 25 or more employees into the following year, they will be required to implement the policy.
• The policy must define the “disconnecting from work” that complies with the Act.
• The ESA does not create a new right for employees to disconnect from work and be free from their obligations. Employee rights to not perform work are established through other ESA rules such as public holidays, vacations, overtime, eating period or the rules established when work is deemed to be performed.
• Where an employer has multiple locations in Ontario, all employees at each location must be included to meet the 25-employee threshold.
• The employer must provide a copy of the written policy, printed or electronic, to employees within 30 days of when the policy is prepared and/or when changes are made to an existing policy. However, if no changes are made to the policy from a previous year, then the employer is not required to provide a copy annually. New hires must also be provided a copy of the written policy within 30 days from the date of hire.
• The policy must include the date it was prepared, or the date changes were made to a policy.
• The employer may establish different policies for different groups of employees. For example, one policy may be established for Senior Executives and another for staff.

Conclusion:

• An employer determines the content of the policy that outlines an employer’s expectations to read, respond to work-related emails or phone calls.
• Employers may implement different policies for different groups of employees depending upon expectations and responsibilities.
• Employers are not required to create a new right for employees.
• The policy includes all employees, even those employers that are exempt from other parts of the ESA

Policy Considerations:

The Ministry of Labour has provided items to consider to be included in a policy as follows:

• 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
• How the employer’s expectations about disconnecting from work may vary based 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 to turn on “out-of-office notifications” and/or changing their voicemail messages when they are not scheduled to work, by communicating that they will not be responding until the next scheduled workday.

Lastly, it is important to note the guidance makes a note informing employers to be careful when establishing a policy to not create a contractual or common law entitlement, that can be enforced under the ESA.

It is advised to seek legal review when implementing a new policy. If you need assistance in developing a Right to Disconnect Policy, please contact HR Enable as we provide Legal and HR Consulting services. We can help in developing a policy designed for your organization that is compliant and limits your liability.