The Right to Disconnect

By of Merovitz Potechin LLP on Monday December 6, 2021.

On December 2, 2021, the Ontario government passed Bill 27, the Working for Workers Act, 2021, amending various pieces of legislation, including the Employment Standards Act, 2000. One of those changes includes the employee’s “right to disconnect”, explained below.

Right to Disconnect

Employers that have 25 or more employees must now have a written policy with respect to disconnecting from work. “Disconnecting from work” means not engaging in work-related communications, including emails, telephone calls, video calls or the sending or reviewing of other work-related messages.

Employers have a grace period of six months to implement such a policy (i.e., June 2, 2022).

Unfortunately, the government has not yet provided any guidance in terms of what these policies must contain. The legislation only establishes that the policy shall “contain such information as may be prescribed.” 

Workplace policies might include restrictions on responding to communications after work hours. For example, France has introduced legislation which grants workers the right not to respond to work-related communications after their core hours.

Non-compete agreement

The amendments also prohibit employers from entering into employment contracts which are, or include, a non-compete agreement. These prohibitions are now in force, retroactive to October 25, 2021. The legislation includes exemptions pertaining to the sale of a business, as well as for “executives.” 

What does this mean for employers?

Employers will need to review and update their workplace policies. This may be a good time to begin a conversation about how the workplace is changing, and what is expected of employees in a hybrid work environment. Employers should also review their existing employee agreements. Some restrictive covenants may need to be removed or rewritten.

What does this mean for employees?

It is difficult to know whether these policies will have any “teeth” until further information is provided.  Nothing in the legislation as drafted prohibits employers from establishing an employment relationship where employees are “on call.” How your workplace deals with the right to disconnect may vary greatly depending on the type of industry you work in.

Update – April 2022

The Ontario Ministry of Labour has updated its online guide to the Employment Standards Act (the “ESA”) to include sections on a written policy with respect disconnecting from work.

There are still no legally prescribed requirements for such a policy. The employer must only include the date the policy was prepared and the date any changes were made to the policy. The guide confirms that the ESA 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.

The guide primarily provides information regarding how to arrive at the “count” when determining whether the 25-employee threshold has been met. It also confirms that the employer can have a different Policy (or different sections of the same Policy) for different groups of employees.

Reader’s Digest Version?  Don’t panic!

We remain of the opinion that this offers employers an opportunity to begin a conversation about how the workplace is changing, and what is expected of employees in a hybrid work environment.  It may also be a good time to revisit other workplace policies including your Work From Home policy, and your Sick Leave Policy.

If you have any questions regarding Bill 27 or workplace policies, contact our Employment Lawyers at Merovitz Potechin LLP.