Canada: Now You See Me: New Requirements For Electronic Monitoring In Ontario Workplaces

The Ontario government moved one step closer towards employee privacy rights by passing Bill 88, The Working for Workers Act, 2022, which requires employers to have written policies for electronic monitoring in the workplace and to provide these policies to employees. Effective April 11, 2022, Bill 88 amends the Employment Standards Act, 2000 (ESA) to include this requirement and establishes one of the first substantive privacy-related obligations for private sector workplaces in Ontario.

Summary of Requirements

Under Bill 88, employers with at least 25 employees as of January 1 of any given year will be required to have a written policy for all employees before March 1 of that year. The policy must confirm whether employees are electronically monitored. If electronic monitoring is used, the policy must:

• describe how and in what circumstances employees are electronically monitored;
• identify the purposes for which the electronic monitoring may be used; and
• provide any other information prescribed by regulation.

The policy and any amendments must be dated, and it must be provided to employees within 30 days from its required enactment and 30 days from any changes that are made to an existing policy. New workers must be provided with a copy:

• within 30 days from the employee's start date;
• within 24 hours from the start of an assignment (if the worker is a temporary help agency worker); or
• within 30 days from the date an employer is required to implement the policy (if this occurs later).

Employers will be required to ensure that copies of every written policy are retained for three years after the policy is no longer in effect.

Bill 88 also provides a transition period in 2022, with the requirement only being effective as of October 11, 2022 (six months from the date those provisions come into effect).

While Bill 88 establishes a clear entitlement to an employer's policy on electronic monitoring, it also places important limitations on this right. Firstly, a complaint under the ESA can only be with respect to the obligation to provide a copy of the policy within the prescribed timeline. Secondly, Bill 88 expressly does not affect or limit an employer's ability to use the information that is obtained from electronic monitoring.

Bill 88 also provides that regulations may be enacted under the ESA to exempt certain methods of electronic monitoring from the policy requirement, as well as to prescribe certain requirements, terms or conditions of employment, or prohibitions related to electronic monitoring.

What Employers Need to Know

Uses and Limits of Electronic Monitoring

The essential requirement under Bill 88 is to provide notice to employees of electronic monitoring. Unlike privacy laws in other provinces such as British Columbia, Bill 88 does not impose criteria of reasonableness and necessity in the collection, use, and disclosure of personal employee information. Indeed, it expressly states that it does not affect or limit employers' ability to use the information that is collected through electronic monitoring.

Despite that, employers should remain wary of overly intrusive electronic monitoring, which can present risks in the form of constructive dismissal or privacy tort claims by employees. To mitigate these risks, employers should generally ensure that their electronic monitoring practices are reasonable in the circumstances and conducted as needed for employment-related purposes.

Lastly, Bill 88 has specific transparency requirements that may be used to hold employers accountable if a particular purpose or method of electronic monitoring is not described in its written policy. Although Bill 88 provides that employees would not be able to file an ESA complaint over this issue or have such complaints investigated, Bill 88 does not necessarily prevent the Ministry of Labour from proactively conducting workplace inspections to verify compliance with employment standards legislation or to address any ancillary issues that may arise through a complaint regarding electronic monitoring. Unionized employees may also be able to grieve violations of this provision through the labour arbitration process.

While Bill 88 does not establish a general right to privacy, employers should also consider having broader policies in place to clarify employee expectations regarding privacy and the acceptable uses of electronic resources. These could be combined with the electronic monitoring policy, subject to fulfilling the procedural requirements noted above.

Details of Electronic Monitoring

Bill 88 does not define the term "electronic monitoring", which may eventually be clarified in the regulations. As an indicator of what this may include, the news release announcing Bill 88 on February 24, 2022 referenced some of the technologies that were contemplated by the government, including computers, mobile devices, GPS, and remotely accessible systems.

For now, employers should ensure that their written policy is inclusive of the various types of electronic monitoring that are being used at their workplace, including remote work environments. This could include the following categories of electronic monitoring:

• Access and attendance (e.g. key fobs, electronic timecard systems)
• Location (e.g. GPS tracking of company vehicles and/or devices)
• Networks and systems (e.g. email and Internet usage, network logins, application usage, equipment sensors, network threat detection tools)
• Surveillance (e.g. video or audio recording, keylogging)

Employers should also ensure that their policies account for the various purposes and circumstances that their electronic monitoring is used for, which may include situations related to safety, security, attendance, timekeeping, performance management, training, and discipline.

Bill 88 does not specify the level of detail required for the policy. Employers should therefore provide sufficient information to identify the general types, circumstances, and purposes of electronic monitoring tools in the workplace, but not necessarily the technical arrangement or product names of the tools themselves. 

Takeaways for Employers

Bill 88 arrives nearly one year after the Ontario government published a white paper outlining the potential framework for private sector privacy legislation in the province, which would align it more closely with provincial privacy regimes in British Columbia, Alberta, and Quebec. Although no legislation has resulted from that initiative so far, the electronic monitoring provisions of Bill 88 indicate that there is still interest in delivering some level of privacy reforms for employees.

Accordingly, in addition to preparing for compliance with Bill 88, employers may wish to turn their mind to the possibility of future privacy reforms that impose additional obligations on their collection, use, and disclosure of personal information. This preparation may include adopting best practices based on privacy laws in other provinces, as well as ensuring that their handling of personal information is appropriately documented and understood by relevant departments, including human resources, risk and compliance, and IT.

Bill 88 also leaves the door open for regulations that establish further requirements or prohibitions related to electronic monitoring. Employers should therefore continue to monitor developments in that regard and future updates from this blog.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.