Little Substance to Ontario’s New ESA Policy Requirements

By Betty Psarris

New policy requirements under Ontario’s Employment Standards Act (ESA) are no reason for employers to panic. 

Doug Ford’s provincial government has made a splash in employment law circles over the last year with headline-grabbing changes to the ESA that require employers with more than 25 workers to come up with policies for “disconnecting from work” and “electronic monitoring” of their employees. 

However, there is not much substance to either requirement and businesses may benefit from keeping their policies on these subjects simple, as we explore in more detail below.

Disconnecting from work policy

Bill 27, the Working for Workers Act, received Royal Assent in December last year, setting a June 2022 deadline for employers of 25 employees or more to provide workers with a “disconnecting from work” policy.

It has become colloquially known as the “right-to-disconnect” requirement, evoking more stringent laws in European Union countries such as France, where workers can not be penalized for refusing to answer calls or emails out of their normal work hours. However, the label is a little misleading for Ontario, since Bill 27 comes nowhere near to creating a similar right. 

In fact, the bill contains very little detail on what must go into a “disconnecting from work” policy, beyond defining the phrase as “not engaging in work-related communications, including e-mails, telephone calls, video calls or the sending or reviewing of other messages, so as to be free from the performance of work.”

As a result, many of our clients are opting to keep their policies as simple as possible. One area that we suggest business owners take particular care of is making sure that they do not inadvertently give workers a greater benefit than the legislation requires. 

A statement from the provincial government announcing the new law suggested that employers could include response-time expectations for emails or encourage employees to turn on out-of-office notifications when they are not working, but the attached regulations do not mandate any such content.    

However, employment standards officers at Ontario’s Ministry of Labour have the power to enforce policies set by employers, even if they exceed minimum legislative requirements. If, for example, an employer’s policy committed them to ban email communications after a certain hour of the day, it means that they could find themselves subject to compliance from the ministry should they fail to meet those standards in practice.

Employee monitoring policy

Bill 88, the Working for Workers Act, which received Royal Assent in April of this year, gives employers with 25 workers or more until October 11 to have a written policy in place on the electronic monitoring of employees. Policies must then be distributed to employees within 30 days.

The policy must contain information on whether the employer electronically monitors employees, as well as a description of when and how the monitoring occurs. In addition, employers must disclose the purposes for which they may use any information obtained as a result. 

As with disconnecting from work, the focus of the employee monitoring requirement appears to be on transparency and disclosure, rather than the creation of substantive rights for employees. 

Importantly, the legislation imposes no new limits on employers’ ability to electronically monitor employees or their rights to use information obtained in the process.  

In addition, the new law does not actually define the term “electronic monitoring,” although it could apply to the tracking of computers, cell phones, emails, GPS systems and other devices. 

Again, one of the biggest dangers for employers is that they expose themselves to ministry compliance by over-committing in their policies, beyond what the legislation requires.

If your organization would like help developing a disconnecting from work policy or an employee monitoring policy, please feel free to contact myself or my co-founder Madeleine Loewenberg for guidance. We would be happy to help you.

This article provides general information only and should not be relied on as legal advice or legal opinion.

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