Bill 27, otherwise known as the Working for Workers Act, 2021, recently received Royal Assent. The bill introduced various amendments to employment legislation in Ontario, including the Employment Standards Act, 2000. Two changes are attracting the most interest from employers. First, the ESA was amended to include a prohibition on entering into non-competition agreements. My colleague Jennifer Herpers will be blogging about that change soon (if she hasn’t already). Second, the ESA was amended to require certain employers to introduce a policy on disconnecting from work before June 2, 2022. This new “right to disconnect” is the focus of this blog.
So, what exactly does this new law require employees to do? In short, not much. The new s. 21.1.2 of the ESA states that any employer that employs 25 or more employees as of January 1 of any year must have a written policy in place for all employees “with respect to disconnecting from work that includes the date the policy was prepared and the date any changes were made to the policy”. Employees, including new employees, must be provided a copy of the policy, including any updated version of the policy after changes are made.
But what does the policy need to say, you ask? What can it not say? Does this “right to disconnect” legislation give Ontario employees any right to disconnect from work? As of today’s date, the answer is no. While s. 21.1.2(4) of the ESA states that the written policy must contain such information as may be prescribed by regulation, no regulations have been passed under that provision and there is no guarantee that any such regulations will be passed. So, in short, if an employer with 25 or more employees drafts and distributes a policy “with respect to” disconnecting from work in accordance with the ESA, it has complied with the ESA as currently written, regardless of what that policy says.
Some employers that usually enjoy exemptions to the ESA under O Reg 285/01, including legal professionals, engineers, construction businesses, etc. may wonder whether their traditionally ESA exempt employees will be exempt from the right to disconnect. The answer to that question is also no. Currently, O Reg 285/01 creates no exemption to the right to disconnect for any class of employee. That may change in the future, but as of today’s date, this means that if the provincial government does eventually introduce regulations governing the contents of employers’ policies about disconnecting from work, those rules will apply to everyone in the workplace unless O Reg 285/01 is amended in the future to exempt certain classes of worker.
To prepare for the June 2, 2022 deadline, employers should carefully consider what they want their policy about disconnecting from work to be. If you reach out to your lawyer for assistance in drafting this policy, keep in mind that unless and until the provincial government introduces regulations about the contents of these policies, there is no “right” or one-size-fits-all approach. For example, a manufacturing business that shuts production down every night will have different concerns than a 24/7 tech support business with clients around the globe. With that in mind, we suggest that you take some time to consider how your organization might ideally balance operational concerns with the concept of “disconnecting”, as well as the increasing pressures of employee retention and recruitment. Then when you’re ready to start drafting a policy, we can help with recommendations for a policy that will meet those goals.
If you have questions about the information contained within this article or any other employment questions, please contact Siskinds Labour and Employment team.