On April 11, 2022, the Government of Ontario passed Bill 88 – the Working for Workers Act, 2022, which, among other things, made amendments to the Employment Standards Act, 2000 (the "ESA") requiring that all employers employing 25 or more workers must have a written electronic monitoring policy in place.

General Requirements

Employers covered by the ESA who had 25 or more employees on January 1, 2022 must have an electronic monitoring policy in place by October 11, 2022, and must provide a written copy of this policy to existing employees by November 10, 2022. In subsequent years, any employer who has 25 or more employees on January 1 of any year must have a policy in place by March 1 of that year.

The aforementioned requirements apply to all of the employer's employees in Ontario. However, the employer is not required to have the same policy for all its employees.

Note that the ESA requirements do not establish a right for employees not to be electronically monitored by their employer, nor do they create any new privacy rights for employees. Instead, the ESA requirements are limited to requiring that employers be transparent about whether and how they monitor their employees electronically.

The Content of the Policy

The policy must state whether or not the employer electronically monitors its employees. "Electronic monitoring" includes all forms of employee monitoring that is done electronically. It is not limited to devices or electronic equipment issued by the employer, and applies whether employees are working in the workplace, at home, or under a hybrid model.

If the employer does not electronically monitor employees, the policy must specifically state this.

If the employer does electronically monitor employees, the policy must include:

  • a description of how and in what circumstances the employer may electronically monitor employees;
  • the purposes for which the information obtained through electronic monitoring may be used by the employer;
  • the date the policy was prepared; and
  • the date any changes were made to the policy.

Use of Collected Information

Bill 88 does not affect or limit an employer's ability to use the information collected as it sees fit. The ESA, as amended by Bill 88 simply requires the employer to state, in its policy, the purposes for which it may use the information collected; it does not limit the employer's use of the information for the stated purposes. Of course, as always, the employer's use and accessing of employee information must not afoul of other legislation, such as privacy-related legislation.

Copies of the Policy

Employers must provide a copy of the policy to employees within 30 calendar days of:

  • the day the employer is required to have the policy in place; and
  • the policy being changed (if an existing policy is changed).

Employers must also provide the policy to new employees within 30 calendar days of the later of:

  • the day the employer is required to have the policy in place; and
  • the day the individual becomes an employee of the employer.

Employers must also provide the policy to assignment employees from temporary help agencies assigned to perform work for it by the later of:

  • 24 hours of the start of the assignment; and
  • 30 calendar days from the day the employer is required to have the policy in place.

Employers may provide the policy to employees as:

  • a printed copy;
  • an attachment to an email (if the employee can print a copy); or
  • a link to the document online (if the employee has a reasonable opportunity to access the document and a printer, and knows how to use the computer and printer).

Record-Keeping Requirements

Employers must retain a copy of every electronic monitoring policy required by the ESA for three years after the policy is no longer in effect.

Key Takeaways for Employers

Employers must ensure that they have electronic monitoring policies in place by the required deadlines. Employers must also remember to conduct annual employee counts as of January 1 to determine whether the requirement applies, to provide copies of the policy to employees within the required timelines, and to abide by the record-keeping requirements to ensure continued compliance with the ESA.

Although the electronic monitoring provisions do not create any new privacy rights for employees and employers are permitted to use the collected information for the stated purposes, employers are advised to seek legal advice about whether the content of their policy could result in liability under legislation outside of the ESA, such as privacy legislation.

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.