Over the last year, the Ontario government has passed two bills amending the Employment Standards Act, 2000 (ESA): Bill 27, Working for Workers Act, 2021 and Bill 88, Working for Workers Act, 2022.
In this article, we provide an overview of some of the requirements introduced by these bills; specifically, we examine the requirements for written policies with respect to disconnecting from work and electronic monitoring of employees.
The requirements relating to both policies apply to all employees and employers covered by the ESA except the Crown, a Crown agency, or an authority, board, commission or corporation whose members are all appointed by the Crown and their employees. These requirements apply to employers with 25 or more employees.
While the deadlines for 2022 have already passed (June 2, 2022 for disconnecting from work policies, and October 11, 2022 for electronic monitoring policies), these obligations are ongoing. Social service employers that did not meet the 25 or more employee threshold for 2022 should be aware that they may be subject to the requirements should their employee count increase above 25 in the future. Beginning in 2023, employers who meet the 25 or more employee threshold on January 1 of each year must have these policies in place before March 1 of that same year.
Determining whether an employer has 25 or more employees as of January 1 is a point-in-time assessment. This means that if the employer has fewer than 25 employees as of January 1 then the ESA does not require it to have policies in place for that year, even if that number increases to 25 or more after January 1. Conversely, if an employer has 25 or more employees as of January 1 and that number decreases later within the same year, the requirement to have these policies in place still exists throughout the remainder of the calendar year.
It is also important to note that the employees to be included in the count are not limited to full-time equivalents but also include probationary employees, some trainees, employees on definite term or specific task contracts of any length, employees who are on lay-off and employees at multiple locations, among others.
Disconnecting From Work Policy
The ESA defines "disconnecting from work" 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." The Guide to the Employment Standards Act (Guide) states that this definition is not exhaustive and other types of work-related communications could also fall under it.
Examples of what the disconnecting form work policy may address include:
- 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 employer's 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 or who is contacting the employee (e.g. 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 in order to communicate that they will not be responding until the next scheduled work day
The Guide confirms that the "obligation to have a policy does not require an employer to create a new right for employees to disconnect from work and be free from the obligation to engage in work-related communications in its policies" but that employee rights under the ESA to not perform work are established through other ESA rules (e.g. hours of work and eating periods, vacation with pay, public holidays).
For more information on disconnecting from work policies, please also see our Human Resources Legislative Update of May 18, 2022, Reminder: Employers to Have Disconnecting from Work Policies in Place by June 2, 2022.
Electronic Monitoring Policy
An electronic monitoring policy must include certain information including whether the employer electronically monitors employees—and, if so, a description of how and in what circumstances the employer may monitor employees and the purposes for which information obtained through electronic monitoring may be used by the employer—and the date the policy was prepared as well as the date any changes were made to the policy.
While the ESA does not define "electronic monitoring," the Guide states that electronic monitoring includes "all forms of employee and assignment employee monitoring that is done electronically."
Of note, the Guide clarifies that the new requirements "do not establish a right for employees not to be electronically monitored by their employer," "do not create any new privacy rights for employees," and "do not affect or limit an employer's ability to use information obtained through the electronic monitoring of its employees in any way it sees fit."
For more information on electronic monitoring policies, please also see our Human Resources Legislative Update of September 28, 2022, Reminder: Employers to Have Electronic Monitoring Policies in Place by October 11, 2022.
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.