What to include in a disconnecting from work policy?

On December 2, 2021, the Working for Workers Act, 2021 was passed into law, changing a number of employment laws in Ontario. One of the notable changes was the amendment of Ontario's Employment Standards Act (the "ESA"), to require employers to create written "disconnecting from work" policies.

Disconnecting from work is defined under the ESA to mean "not engaging in work-related communications, including emails, telephone calls, video calls or sending or reviewing other messages, to be free from the performance of work."

While the ESA establishes rules relating to who must create the policy and by when, it is largely silent about the content that must be included in a disconnecting from work policy. A recent update to the Ontario government's "Your guide to the Employment Standards Act" (the "Guide") to cover disconnecting from work policies provides some welcome clarification. Below we summarize the current known requirements for disconnecting from work policies.

(1) Requirement to have a written policy on disconnecting from work

Number of Employees:

The ESA establishes that employers with at least 25 employees must have a written policy on disconnecting from work. The number of employees is counted as of January 1 of a given year. For example, if an employer has 25 employees on January 1 of a given year, it must have a written policy in place for the whole year, regardless of if it subsequently drops below 25 employees later in the year.

In counting employees, all employees at all locations in Ontario must be counted. Employees is defined broadly and includes employees who may be on leaves of absence or layoff. Further, if two or more employers are considered related under the ESA, than employees of these two or more employers are included in the count.

Application to Employees:

The policy must apply to all employees covered by the ESA - there are no exceptions specified in the ESA or the Guide. However, the same policy does not need to cover all employees. Rather, employers can have different policies or different sections of one policy apply to different employees. The example given by the Guide was that a retail employer may have one policy that applies to its office staff and a different policy for its in store sales staff.

Copy of the Policy:

Employers must provide the written policy to employees within 30 calendar days of the policy being prepared or changed. For new hires, the policy must be provided within 30 calendar days of them being hired.

The Guide states that the policy may be provided in one of the following formats:

• A printed copy
• An attachment to an e-mail if the employee can print a copy
• A link to a document online if the employee has a reasonable opportunity to access the document and a printer

Retention of the Policy:

An employer is obliged to keep a record of every policy on disconnecting from work that was required by the ESA for three years after the policy is no longer in effect.

(2) Content of the written policy on disconnecting from work

Currently, there are only three requirements for the content of the policy:

1. The policy must be on "disconnecting from work" as defined by the ESA.
2. The policy must include the date the policy was prepared.
3. The policy must include the date(s) any changes were made.

Otherwise, the employer determines the contents of the policy itself. This provides employers with leeway to create a policy or policies that suit the nature of their unique workplace. For example, the contents of a policy for a workplace that operates as a manufacturing plant may be very different from a remote workplace in the tech industry.

Importantly, the Guide specifies that there is no obligation on employers to create a new right for employees to disconnect from work or be free from the performance of work. The rights of employees not to perform work are established through other ESA rules, such as hours of work, overtime, and vacation rules. There are a couple important implications from this:

• If the employer's policy does not provide for a greater right to be free from the performance of work than those set out through other ESA rules, the policy itself will likely not be enforceable under the ESA. This means that enforcement action may not be taken against an employer for not following its policy, unless that also amounts to a breach of another ESA obligations.
• If the employer's policy does provide for a greater right to be free from the performance of work than those set out through other ESA rules, the policy itself may be enforceable under the ESA because it confers a greater benefit on the employee. This means that an enforcement action could be taken against an employer for simply not following its policy.

Additionally, employers should be alert to any existing policies they may have in place regarding time off from work. It will be incumbent on employers to ensure that the terms of their new policy on disconnecting from work do not contradict any existing policies or, if they do, amend the existing policy.

With that in mind, employers are strongly encouraged to seek the assistance of legal counsel when preparing their disconnecting from work policies. Careful drafting will be key to ensuring that the policy's consequences are as intended.

Takeaways:

Ontario employers with 25 or more employees must have a written policy on disconnecting from work in place by no later than June 2, 2022. However, employer's have significant discretion about what to include in their policy. Employers should give careful consideration to the unique nature of their workplace and what may make it easier or more challenging for their employees to disconnect from work. Then, they should work with an experienced lawyer to prepare a policy that is appropriate for their workplace.

Lee Workplace Law would be happy to assist you in preparing or reviewing your workplace's disconnecting from work policy.