The Ontario Employment Standards Act (ESA) is the main source of legal rights and obligations for employers and employees in the province. Last year, the government introduced several amendments to the ESA that affect various aspects of the employment relationship, responding specifically to the changing nature of work in the digital age.  

The Ontario Bar Association notes that many of the changes to the ESA will have “long lasting effects on employees in Ontario.” We discussed these updates with Avril Hasselfield, whose practice includes employment law in association with Caravel Law, to identify the most relevant changes that employers should ensure they are aware of.  

The Right to Disconnect  

The Right to Disconnect acknowledges that, in an era of 24/7 access to work, many employees no longer have a separation of workplace/time with the rest of their lives. While working from home has its perks, clear work/life boundaries is not one of them. Here’s what you need to know about The Right to Disconnect:  

• It applies to employers of 25 or more employees; 

• The requirement went into effect as of March 1st, 2023. If you do not yet have this policy written and accessible to your employees, you should do so as soon as possible; 

• The policy must address work-related communications, including emails, telephone calls, video calls or sending or reviewing other messages; and 

• The policy should acknowledge that your performance at work will not be impacted by disconnecting outside of the agreed upon work hours. 

The policy can be as brief or fulsome as you desire, so long as it addresses the above points. The policy or statement should ensure that employees have standards they can rely on if they are in a work environment with flexible or extensive work hours that do not ever seem to shut off.  

Electronic Monitoring  

Again, in response to the increasingly electronic workplace, the provincial government is requiring employers to draft a statement outlining their approach to electronic monitoring. Here’s what you need to know:  

• Employers with 25 employees or more must have an electronic monitoring policy that they adhere to 

• The requirement went into effect as of March 1st, 2023. If you do not yet have this policy written and accessible to your employees, you should do so as soon as possible; 

• The employer must explicitly state if they do or do not engage in electronic monitoring in the policy; 

• If they do, the statement must include a description of how, when and why they are monitoring employees. 

So long as the policy covers the above questions, the employer is in compliance with ESA requirements. Thoroughness is up to the employer’s discretion. However, in discussing this with Avril, she noted that this particular policy is one we can expect to be expanded. There is increasing pressure to understand what companies are monitoring, what data they are collecting, or what data they could collect. Privacy is an increasing concern in the workplace. While a written policy is all that is required at the moment, we can expect to see more emphasis put on transparency with employee monitoring.  

Both the Right to Disconnect and the Electronic Monitoring policies are reminders to employers of the ethics they must uphold in their workplace. Rather than providing a laundry list of regulatory requirements, the Ontario government is outlining the ethical standard they expect employers to meet in the ESA. These are not onerous policies, in many instances they can be quite brief, but they uphold a standard of best practices in the workplace.  

Business and IT Consultants Exemptions from ESA Requirements  

Whether an individual is found to be an employee, or a self-employed independent contractor depends on many factors of the working relationship as a whole. Bill 88, or the “working for Workers Act 2022” outlined new provisions to help determine if business and IT consultants can be exempted from certain ESA requirements. The new provisions ask the following questions:  

1. Is the business or information technology consultant providing services through a corporation (of which the consultant is either a director or a shareholder who is a party to a unanimous shareholder agreement) or a sole proprietorship (of which the consultant is the sole proprietor)? 

2. Is there an agreement for the consultant’s services that sets out when the consultant will be paid and the amount the consultant will be paid?

3. Is the consultant’s pay equal to or greater than $60 per hour, excluding bonuses, commissions, expenses and travelling allowances and benefits, or similar arrangements?

4. Is the consultant receiving pay as set out in the agreement (equal to or greater than $60)?  

Ontario’s Employment Services Act upholds standards of the employer-employee relationship that you must be in compliance with. Caravel has a team of over 90 qualified and experienced lawyers, including those specializing in employment law. Get in touch with our team today to find out more.