In response to the increase in the number of employees working remotely since the onset of the pandemic and the ever-increasing prevalence of technology in the workplace, the Ontario government has amended the Employment Standards Act, 2000 (the “ESA”), to create new policy obligations for employers. Those new employer obligations aim to increase transparency between employers and employees, and to better define expectations related to technology in the workplace.
These recent amendments to the ESA were enacted by the Working for Workers Act, 2021 that became law on December 2, 2021 and by the Working for Workers Act, 2022 that became law on April 11, 2022. As a result of those enactments, employers are now required to create both a Disconnecting from Work Policy and an Electronic Monitoring Policy.
Disconnecting from Work Policy
Bill 27 – the Working for Workers Act, 2021 requires employers to create a written policy on disconnecting from work, by adding a new Part VII to the ESA. As previously written about by Soloway Wright, the same Bill prohibits employers from inserting non-competition clauses into their employment contracts, subject to several exceptions.
This new obligation to create a Disconnecting from Work Policy applies to all employers who have 25 or more employees as of January 1st in any given year. For 2022, employers with 25 or more employees as of January 1st were required to have a written policy drafted by June 2, 2022 (six months from the date that the legislative amendments became law). For all subsequent years, all qualifying employers are required to have their policy in place by March 1st of that year.
It is not enough for an employer’s human resources department to simply draft a written policy; it must also actually circulate that new policy to all of its employees within 30 days of its’ creation. Subsequently, any time an employer amends that policy it must advise employees of those changes within 30 days. Further, if the employer hires new employees during the year, it has a positive obligation to provide those new employees with a copy of that policy within 30 days of their start date.
One big question that has frequently been discussed since the legislation was enacted is: what must employers include in their Disconnecting from Work Policy? The answer is: not much.
Some recent online posts inaccurately claim that Bill 27 creates a new right for employees and requires employers to allow their employees to disconnect from work after hours. That is not the case.
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.”
Nowhere does Bill 27 actually stipulate that employers must permit their employees to disconnect from work. It simply requires that the policy be on the subject of disconnecting from work, that it apply to all employees (though not necessarily equally) and that it include the dates on which it was prepared and/or amended. As matters presently stand, there is no requirement to incorporate any further information into a Disconnecting from Work Policy.
In fact, the Ministry of Labour has itself stated 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 in its policies. Employee rights under the ESA to not perform work are established through other ESA rules [such as rules on hours of work, vacations and public holidays]….The employer determines the content of the policy itself.” [Emphasis from Ministry of Labour]
The legislation therefore leaves to employers, total discretion on whether or not to permit their employees to fully disconnect from work after their normal work hours are completed.
Employers should also note that pursuant to their record keeping obligations under the ESA, they must retain a copy of any Disconnecting from Work Policy that they established for three years after that policy is no longer in effect.
Electronic Monitoring Policy
Bill 88 – the Working for Workers Act, 2022, requires employers to create a new policy on electronic monitoring, by creating a new Part XI.1 of the ESA. This is the first policy requirement of its kind anywhere in Canada.
In many ways, this new policy obligation mirrors the requirements that were imposed on employers by Bill 27. Like Bill 27, Bill 88 applies this new policy obligation to all Ontario employers who have 25 or more employees as of January 1st in any given year. For 2022, employers with 25 or more employees as of January 1st are required to have a written policy drafted by October 11, 2022 (six months after the legislative amendment became law). And for all subsequent years, all qualifying employers are required to have their policy in place by March 1st of that year.
Further, Bill 88 – like Bill 27 – requires employers:
- to provide a copy of this newly drafted policy to all employees within 30 days of its being drafted or amended with all new hires to be provided with the policy within 30 days of hire;
- to apply to all employees; and
- to include the date the policy was prepared and the date that any changes to the policy were made.
Unlike the Disconnecting from Work Policy, the ESA contains a little more direction concerning what must be included in an employer’s Electronic Monitoring Policy. The Electronic Monitoring Policy must meet the following substantive criteria:
- It must identify whether the employer electronically monitors its employees;
- If an employer does monitor its employees, it must:
- Describe how and in what circumstances the employer may electronically monitor its employees; and
- Identify the purposes for which information obtained through electronic monitoring may be used by the employer.
In no way does the ESA itself prohibit employers from monitoring their employees, nor does it give employees any privacy rights. In fact, the ESA specifically says that nothing within this new section affects or limits an employer’s ability to use information obtained through its electronic monitoring of its employees. In fact, the Ministry of Labour has specifically stated that this new policy obligation “does not establish a right for employees not to be electronically monitored by their employer or create any new privacy rights for employees”.
Nonetheless, employers should still be mindful of their electronic monitoring of employees, as unreasonable and overly intrusive monitoring could still give rise to civil claims by employees for damages.
Penalties for Non-Compliance with these new employer obligations
If an employer fails to abide by the government’s new policy obligations as set out in these recent changes to the ESA, it potentially faces having to pay big penalties.
An Employment Standards Officer could audit or investigate an employer to determine if it is in compliance with the ESA. If an employer has not fulfilled its requirements in relation to these two new policy obligations, then the Officer has the ability to issue a Notice of Contravention, which can be accompanied by a fine of $250 per affected employee for a first offence, $500 per employee for a second offence, and $1,000 per employee for a third or any subsequent offence. The Director of Employment Standards can also publish the employers name as a party that has contravened the ESA.
Furthermore, employers may be prosecuted pursuant to section 132 of the ESA if they contravene or fail to comply with any requirement of the Act. Although these prosecutions are relatively rare, if convicted, an individual can be liable – on a first offence – for a fine of up to $50,000 and a corporation can be liable for a fine of up to $100,000.
Takeaways for Employers
Employers need to ensure that they have the proper Disconnecting from Work and Electronic Monitoring Policies in place. However, in preparing these policies employers need to be careful that they do not unintentionally give their employees more rights than are necessary and that they not bind themselves into practices that they did not want. Once enacted into a policy, employers are required to follow through with the provisions of their policies and any rights granted to employees can be enforced by Employment Standards Officers.
To ensure that your policies are properly drafted to reflect your organization’s intentions, contact an employment lawyer at Soloway Wright LLP.
