We recently reported on Bill 27 – Working for Workers Act 2021. It has now received royal assent and become law in Ontario. It amends the Employment Standards Act 2000 (ESA) and related statutes, granting novel rights to employees and imposing new obligations on employers.

This article looks at one fundamental change introduced by the Working for Workers Act 2021, the requirement for certain employers to have a written policy concerning disconnecting from work.

According to the Ontario Workforce Recovery Advisory Committee report, which recommended the introduction of a right to disconnect, it should:

protect workers’ ability to balance personal obligations with work commitments, foster a culture of life-work balance and emphasize Ontario’s commitment to supporting mental health.

 The Working for Workers Act 2021 creates new obligations on disconnecting from work

The Working for Workers Act 2021 amended the ESA to require certain larger employers to have a written policy for “disconnecting from work.” This legislation defines this phrase 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.

The Ontario Ministry of Labour, Training and Skills Development recently issued guidance on the new requirements (Guidance). This 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 in its policies.

Which employers need a disconnecting from work policy?

The requirements apply to employers that employ 25 or more employees in Ontario on January 1 of any year.

Which employees are included in the count?

According to the Guidance, the individual number of employees is counted, not the number of full-time equivalents. If an employer has multiple locations, all employees at each Ontario location must be added together. If the total across sites is 25, a policy is required.

If employers are related and treated as one employer under the ESA, then all employees employed in Ontario by the employers are included in the count.

What if the employee headcount changes during the year?

If the employee count is below 25 on January 1 but later hits the 25 mark, the employer does not need to have a policy for that year. However, a policy will be required for the next year if there are at least 25 employees on the following January 1.

On the other hand, if the employee count is 25 on 1 January but later dips below 25, the employer is still obligated to disconnect from the work policy. However, the obligation will not apply in the next year if the employer still has fewer than 25 employees following January 1.

What is the deadline for preparing the disconnecting from work policy?

According to the ESA, the policy on disconnecting from work usually needs to be in place before March 1.

However, a special rule applies only in 2022, the first year of the requirement. Employers that employ at least 25 employees on January 1, 2022, must have the policy by June 2, 2022.

What needs to go into a disconnecting from work policy?

The ESA doesn’t provide much detail on the information that must be included in the policy. It says that the employer has to have a written policy for all employees in Ontario. It needs to include the date the policy was prepared, and any changes were made to the policy. Finally, it needs to contain such information as may be prescribed in regulations.

The Guidance clarifies that the employer need not have the same policy for all its employees. They can have a single policy for all employees or different policies (either in a single document or in multiple documents) for different groups of employees.

The employer determines the content of the policy. The Guidance gives a few examples of what the policy may address. These include:

• The employer’s expectations regarding responding to emails or calls after shifts are over.
• Different expectations depend on the time of the day, the subject matter of the communication and who is contacting the employee (for example client, supervisor and colleague).
• Requirements regarding out-of-office notifications or changing voicemail messages when the employee is not scheduled to work.

How does the disconnecting from work policy need to be distributed and stored?

Under the ESA, an employer must provide a copy of the written policy to each employee within 30 days of preparing the policy or if an existing written policy is changed within 30 days of the changes being made. According to the Guidelines, the employer does not need to provide a copy of the policy to employees annually if it has not changed from the previous year.

An employer needs to give a copy of the policy to a new employee within 30 days of the day they become an employee.

The employer may provide the policy to employees as a printed copy, an attachment to an email if the employee can print a copy, or as a link to the document if the employee has a reasonable opportunity to access the document and a printer.

Finally, an employer must retain copies of every written disconnecting from work policy for three years after the policy stops.

Contact Toronto Employment Lawyers to Understand your Legal Rights and Obligations under the Working for Workers Act

Implementing the disconnecting from work policy may be a complicated endeavour for organizations with employees who currently work into the evening and on weekends or work on an “on-call” basis.

To discuss how these amendments may affect you or your business and how to best prepare, contact the seasoned labour and employment lawyers at GGFH LLP in Toronto. Our lawyers have long been at the forefront of employment and labour law. We are one of Canada’s most recommended labour and employment law firms. If you need guidance with a workplace-related issue, contact us online or at 416.364.9599.