Your Right to Disconnect in Ontario

The digital age has blurred the line between work and home, while the COVID -19 pandemic has made this distinction almost disappear. As people shifted to hybrid or remote schedules, many of them had to work longer hours, stay on call, or be expected to answer urgent emails and messages after work.

Why The New Law is so Important to Ontarians

These new requirements, amplified by the stresses of the pandemic, made many employees in Canada feel on the verge of burnout. Under these circumstances, the demand for the right to disconnect from work to have a chance to recharge and spend quality time with the family became more and more prominent.

The new law regulating the right of employees in Ontario to disconnect from work and electronic communications was passed on November 30, 2021, making Ontario the first among Canadian provinces to adopt the new labour practice. Keep reading to find out more about how the new law came about, what it means for you, and the grey areas in the right to disconnect in Ontario yet to be addressed.

How Did The New Law Come About?

Other countries have had similar regulations for the right to disconnect even before the pandemic. In 2016, France was the first to adopt the right to disconnect regulation in response to the impact of digital technologies on labour.

Following the lead by other jurisdictions, the labour ministry has established the Ontario Workforce Recovery Advisory Committee to "prevent Ontario from becoming a place where people burn out from endless work and where family time comes last." The committee has made recommendations that were incorporated in Bill 27, Working for Workers Act, 2021, which included a number of labour-friendly requirements, such as the employer's obligation to establish a right-to-disconnect policy.

Bill 27 made Ontario the first in Canada to prioritize employees' work-life balance. As commented by the minister of labour, Monte McNaughton, the new measures are meant "to make it easier to spend time with family and loved ones, requiring most workplaces have a right to disconnect policy."

What Is Included in the New Law?

The Bill 27 came with several measures to "position Ontario as the best place in North America to recruit, retain and reward workers." Speaking about working conditions, the new regulation offers a number of labour-friendly advancements, such as:

• the requirement that employers with 25 or more employees should have a written policy on employees disconnecting from their job,
• ban on non-compete agreements, which prevented people from switching jobs to work in a business competing with their previous employer,
• cancelling the requirement to have a Canadian work experience, previously applied to qualified immigrants seeking jobs in regulated professions,
• requirement to businesses to let delivery drivers and couriers use the company's washrooms,
• requirement to recruiters to have a license "to carry on business with honesty and integrity."
  

What Does The Right to Disconnect Actually Mean?

According to the new law, disconnecting from work means "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 law further requires that businesses that employ 25 or more employees should have a written policy on disconnecting from work.

At the same time, the Bill is not specific about what exactly a company policy must say. In other words, while the law obliges companies to inform employees when they should work, it doesn't prevent businesses from actually requiring employees to be on call if presumed by the policy.

What Are the Possible Exceptions?

Similarly, the new law doesn't make it clear if the right-to-disconnect policy would apply to all businesses or employees or if there would be any exceptions. For example, the Employment Standards Act, 2000 (ESA) includes special rules and exemptions for the following categories:

• EMS, healthcare and health professionals
• manufacturing, construction and mining
• hospitality services and sales
• transportation
• agriculture, growing, breeding, keeping and fishing
• household, landscaping and residential building services
• government employees and professionals

The Employment Standards Act covers some of these categories only in general, while certain categories of employees are regulated by special rules. It is expected that the right to disconnect in Ontario for these employees will be addressed in the following regulations.

What Are Your Remedies

In Canada, most employers have to observe the limits to the number of hours an employee is required to work. If you are in Ontario, in most cases, you cannot be required to work more than eight hours per day without a written agreement.

If your employer consistently asks you to work after hours, for example, requesting you to be on-call, you may have the right to constructive dismissal that is asking for termination with full compensation for the losses (aka severance pay).

Important Takeaways

It's Progress

The new legislation marks an important step in improving work-life balance and protecting people's family time. The new Bill 27 defines the right to disconnect in Ontario, among other requirements, designed to address the global challenges of the post-pandemic digital world.

Further Guidance is Still Needed

Apart from specifying what the right to disconnect is and obliging employers to draft a relevant policy, the new law doesn't provide further guidance on what such policies should include or exclude. It also doesn't address any exceptions which might be in place for regulated categories of workers mentioned in the Employment Standards Act.

When Will Further Guidance Be Given?

It is expected that the Standing Committee will further address the existing gaps in early 2022. For now, if you are interested in having a better understanding of your right to disconnect in Ontario and your employer's expectations surrounding overtime, bookmark this post for future updates.

If you have any questions regarding the right to disconnect in Ontario or other concerns related to your employment contract, please do not hesitate to speak to experienced employment lawyers from Aaron Waxman & Associates in Toronto. Call us by our toll-free number 1-844-583-4878, email us or reach out through our website for a free consultation on how we can assist you.