Ontario employers with 25 or more employees had until June 2, 2022, to put in place a written policy on disconnecting from work.
We have blogged about this topic back in December 2021. Please read “The Right to Disconnect from Work and the Downfall of Non-Compete Clauses” for more information here.
To remind our readers, the right to disconnect was a policy requirement that was added to the Employment Standards Act, 2000 (“ESA”) in December 2021. The legislation was initially passed by the Working for Workers Act, 2021, and it made changes to the ESA. Now in section 21.1.1 of the ESA, employers with 25 or more employees on January 1, 2022, would have until June 2, 2022, to have in place a written policy on disconnecting from work.
The ESA goes on to define what it means when discussing the “right to disconnect.” The ESA defines the term to mean as 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.
Back in December of last year we wrote in our blog that while the content of the legislation was unknown, we would be surprised if it has any real teeth when it comes to enforcement and monitoring of employers with respect to these supposed new work-life balance policies. And we were correct. There are no real enforcement provisions set out here. It is just left up to the employers to self-monitor. Frankly, it creates nothing more than some bureaucratic box-checking on the part of employers to comply with the new legislation. Employer-side lawyers have labeled this as a “win” for employers given the lack of enforcement. Employee-side lawyers lament that these new obligations are nothing more than smoke and mirrors adding virtually nothing of substance to create a “right” to disconnect from the workplace.
So again, where does that leave the frustrated and overworked employee? The answer is in the exact same position they were in before these changes to the ESA were put in place. And maybe this is for the best. Life is complicated and so is the workplace. At different times different types of jobs with different levels of responsibility will inevitably lead to differences with respect to the “right to disconnect.” For instance, generally managers with higher pay and more responsibility will reasonably be expected to communicate with their employer beyond the typical 9 to 5 hours, especially if those communications are related to important time-sensitive matters.
So, the bottom line is that an employee should take note of their job description right off the bat and make sure to clearly understand their responsibilities and duties that go along with the job they are accepting, including any policy relating to work-life balance. Employers need to ensure that they communicate clearly with the employee about any expectations related to non-work or personal time from the beginning.