On December 2, 2021, Bill 27, also known as the Working for Workers Act, 2021, received Royal Assent. The omnibus bill introduced a number of amendments to employment legislation in Ontario, including the Employment Standards Act, 2000 (ESA). One particular amendment that has businesses asking questions is the Right To Disconnect. So what does this mean? What should your next steps be? One key point is that if your business has more than 25 employees, you will need to have a written policy by June 2, 2022.
Let’s take a closer look at this specific piece of Bill 27.
The Right To Disconnect
The Right to Disconnect has been the most publicized of the changes to the ESA. The legislation amends the ESA to require larger organizations to codify or develop a policy regarding employees’ right to disconnect from work. The amended legislation 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.”
My business has fewer than 25 employees.
Great! That means you don’t have to worry about creating any new form of written policy. The Right To Disconnect amendment of Bill 27 only mandates a written policy for employers of more than 25 people.
My business has 25 employees or more.
The ESA now mandates that employers with 25 or more employees must have a written policy regarding its practices and expectations on disconnecting from work. As of Jan. 1, 2022, employers must have a written policy by June 2, 2022. From 2023 onwards, employers with 25 or more employees on Jan. 1 of any year must have a written policy in place before March 1 of that year.
The Ontario government has indicated the changes to the ESA do not provide employees with a “new” right to disconnect from work and be free from the obligation to engage in work-related communications. The only express requirement is that employers implement a right to disconnect policy, but unless later set out in regulations, the legislation does not contain any specific standards or parameters around “disconnecting from work”. The ESA does require that employers include the date the policy was prepared, the date any changes were made, and employers must ensure that it applies to all employees in Ontario.
It’s at the employer’s discretion to determine the content of the policy, as long as it complies with the existing rights set out in the ESA concerning work hours, break periods, vacation with pay, public holidays and when work is deemed to be performed.
Although the policy must apply to all of an employer’s employees in Ontario (including management and executives), the employer isn’t required to have the same policy for all employees in other locations. This means an employer can have different policies to cover different groups of employees.
The government has provided some examples of what the policy might address.
If you require any assistance drafting a policy to address the Right to Disconnect, Caravel Law is here to help. Caravel has over 70 qualified and experienced lawyers, including those specializing in employment contracts. Get in touch with our team to find out more.