Is There Really a “Right” to Disconnect in Ontario?

Over the past 2 years, remote work has transformed the way people work for good.  According to a recent survey conducted by Robert Half and Amazon Canada, about 50% of workers would rather quit than return to the office full-time.  The flexibility and the time saved in commuting for employees translated into working longer hours during the pandemic. 

All this came at a cost however.  Remote work created a culture where employees was always “on” or “connected”.  This blurred the lines between work and personal life.  In fact, out of 1,304 Canadian workers surveyed, 84% have experienced burnout according to Ceridian’s 2022 Pulse of Talent Report conducted by Hanover Research.  Increased workload, lack of compensation and mental health challenges were found to be the main culprits.  

To tackle this troubling trend, Ontario passed the Right to Disconnect legislation under Working for Workers Act (Bill 27) on December 2, 2021.   Disconnecting from work is defined as “not engaging in work-related communications, including emails, telephone calls, video calls or sending or reviewing other messages, so as to be free from the performance of work”, under the Employment Standards Act, 2000 (ESA).   

By this definition, many would have interpreted to mean employees now have a legal right to disconnect from working after their scheduled hours, right?  Not exactly.   

The Ontario Ministry of Labour (MOL) has confirmed that the ESA does not require an employer’s policy “to provide a right for employees to disconnect from work and be free from the obligation to engage in work-related communications”. 

So what does the “Right to Disconnect” really mean in Ontario for employers?

Here are the facts:

Written Policy 

Employers must have a written policy in place about “disconnecting from work” by June 2, 2022 for organizations with 25 or more employees.

Only a written policy is required. There is no mandate as to what must be included in the policy, however.  Employers have free reigns on the policy content and can decide on what makes sense based on the nature of its business and workplace.  In essence, there is no automatic right for employees to disconnect from work unless the employer writes it into its own policy. 

Policy Distribution 

A copy of the policy must be provided to employees within 30 calendar days…

• Once the policy is developed
• When there is a revision to the existing policy
• Upon hire

Policy Application

The policy must include date it was created and revised and apply to all employees including management and executives.

It should be noted that different policies/rules can apply to different groups of employees depending on the requirements of the job.  Employers have the flexibility to decide that. 

Record Retention

A copy of the policy and any revisions must be retained for a period of 3 years after it is no longer in effect.

Now that the compliance requirements have been clarified, before you put pen to paper, it would be important to first get clear on what you are looking to achieve with your policy.  Is it simply to meet the compliance requirements? Or is it also to improve workplace culture and set boundaries that can help reduce employee burnout in the era of remote work?  Your answer here will dictate what to include in the policy that aligns with your organizational goals. 

With this in mind, here are some HR considerations of what to include in your policy that can help companies shift away from a constantly connected culture: 

• Outline expectations to encourage internal meetings/calls/video conferences be held within certain business hours company-wide  

• Define off-hours observed by the company as a whole or specific departments based on business needs

• Discourage employees from sending emails after a certain cut-off time during the week or on the weekends except in specific urgent situations

• If employees are required to respond after-hours in urgent situation, define what those situations are and how the time will be treated above a certain threshold

• Determine whether different rules should apply to different groups of employees depending on the nature of the work, the type of business you’re in and other relevant factors

• Set expectations on email etiquette and requirements for identifying important work related communications depending on the situation, the job and who the communication is from

Employers have the flexibility to decide how far it wants to take the policy depending on its objectives and values.  It is not a one-size fits all type of scenario.  For it to be meaningful, it must balance the needs of your business with the needs of your employees.  A well-crafted policy on this front can potentially help companies stand out and better retain or attract talent in this new frontier of hybrid or remote work.