Ontario is on track to become the first jurisdiction in Canada to legislate a "right to disconnect" for employees.

The proposed legislation, Bill 27, Working for Workers Act, 2021 ("Bill 27") passed First Reading on October 25, 2021.1 Bill 27 is omnibus legislation that seeks to amends several acts, including the Employment Standards Act, 2000 ("ESA").

One of the proposed changes to the ESA is introducing a requirement on employers with 25 or more employees to have a written policy with respect to disconnecting from work. The term "disconnecting from work" is defined to mean 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.

The draft legislation, however, provides very few details regarding what should be included in the policy.

Employers should consider how the "right to disconnect" will impact their operations, particularly in organizations with 24/7/365 workplaces or operate in multiple time zones. Some employees prefer flexibility in their hours of work, which may mean connecting outside normal operations. Technology leaders should determine if there are ways to delay or sequester messages that are not urgent, so that they are delayed during normal business hours.

Employers will have six months after Bill 27 becomes law to implement the policies in their own workplaces.

Notably, the proposed amendments do not specify which employees will be exempt from the new requirement. Nonetheless, significant parts of the ESA do not apply to many professionals, such as lawyers, doctors, pharmacists as well as managers and supervisors. It will be interesting to see if these roles are exempted from the "right to disconnect."

The "right to disconnect" has been gaining traction, since technology has blurred the lines between work and home. There are several jurisdictions in Europe that already had such legislation in place pre-COVID-19. The first legislation related to the right to disconnect appeared in France in 2016, followed by Italy in 2017 and Spain in 2018.

However, the pandemic piqued Canada's interest in the right to disconnect. Over the past year, the Canadian government had been conducting consultations about how to better support work-life balance for federally regulated workers and on the right to disconnect.2 The federal government has not yet introduced any policy or legislation for federal workers. Instead, Ontario is pioneering these changes.

The Ontario government stated that the proposed changes are meant to better support and attract workers to the province while also encouraging better work-life balance.3

Banning non-compete agreements

Another trailblazing change that Bill 27 proposes is banning the use of non-compete agreements that prevent employees from exploring other work opportunities.

In recent years, Ontario courts have found that restrictive covenants such as non-compete agreements are only enforceable in "exceptional" circumstances.

With Bill 27's proposed legislative changes, the narrow usage of non-competition agreements in Ontario could be barred, with one exception. The exception applies in the context of a sale of a business, where, as part of the sale, the parties enter into an agreement that prohibits the seller from competing with the purchaser's business and the seller becomes an employee of the purchaser immediately following the sale.

If Bill 27 is passed, the non-compete prohibition will be deemed to have come into force on October 25, 2021.

These are only some of the changes that Bill 27 is proposing. Other changes include adding licensing requirements for temporary help agencies and recruiters and changes to other employment-related legislation such as the Occupational Health and Safety Act and the Workplace Safety and Insurance Act. Given the sweeping changes proposed, employers should watch the progress of Bill 27 closely.

Footnotes

1. https://www.ola.org/en/legislative-business/bills/parliament-42/session-2/bill-27

2. https://www.canada.ca/en/employment-social-development/corporate/portfolio/labour/programs/labour-standards/consultation-right-to-disconnect-and-gig-work/backgrounder-right-to-disconnect.html

3. https://news.ontario.ca/en/release/1001033/ontario-creating-a-better-future-for-workers

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