Update on the Requirement for a Policy on Disconnecting from Work under the Ontario ESA

Bill 27, which received royal assent on December 2, 2021, amended the Ontario Employment Standards Act, 2000 (the “Act”) to create a requirement that employers with 25 or more employees in Ontario put in place a written policy on disconnecting from work.

Our initial Focus Alert on the topic included particulars on the various deadlines for implementation of a policy on disconnecting from work, as well as employers’ related disclosure and retention obligations. Although details about the required contents of the policy have still not been prescribed by regulation as anticipated, the Ontario Ministry of Labour (the “MOL”) has recently published guidance for employers who will be required to implement a written policy by June 2, 2022. Beginning in 2023, employers that employ 25 or more employees on January 1^st of any year must have a written policy in place before March 1^st of that year.

“Disconnecting from work” is defined in the Act 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 MOL’s guide provides that this list is not exhaustive, and other types of work-related communications could also fall under this definition.

Calculation of Employee Threshold

The requirement for a policy on disconnecting from work applies to all employers that employ 25 or more employees in Ontario on January 1^st of any year.

For the purposes of determining whether this threshold has been met, anyone who meets the definition of “employee” must be counted including, for example, homeworkers, probationary employees, some trainees, officers of a corporation who perform work or supply services for wages, employees on definite term or specific task contracts of any length, employees on a leave of absence, employees on lay-off, employees who are on strike or are locked-out, and employees who are exempt from the application of certain part(s) of the Act. Employers must also be mindful to:

• Count full-time, part-time and casual employees each as individual employees (i.e., not the number of “full-time equivalents”)
• Include all employees employed at each of the employer’s locations in Ontario, and
• If two or more employers are treated as one employer, include all employees employed by these two or more employers in their calculation.

In the case of temporary help agencies, assignment employees must be included in the count to determine whether the temporary help agency has met the 25-employee threshold. Accordingly, they are not to be included in the temporary help agency’s client count to determine whether the client to whom the assignment employees have been assigned has met the threshold.

When the Number of Employees Changes Throughout the Year

The key date in respect of the requirement for a policy on disconnecting from work is January 1^st. In the result, if on January 1^st of any year, an employer employs 25 or more employees in Ontario, they will be subject to the requirement for that year. This remains the case even if the number of employees decreases to fewer than 25 at any point throughout that year.

Conversely, if on January 1^st of any year, an employer employs fewer than 25 employees in Ontario, they will not be subject to the requirement for that year. This remains the case even if the number of employees increases to 25 or more at any point throughout the year.

Employers are required to conduct a fresh assessment every January 1^st.

Policy Requirements

In preparing a policy on disconnecting from work, employers must include the date the policy was prepared and the date(s) any changes were made to the policy. The Act does not otherwise specify the information that must be included in the policy. In the result, although the subject of the policy must obviously be on disconnecting from work, it is employers who determine the contents of the policy itself.

The MOL’s guide provides the following examples of topics that a policy on disconnecting from work might cover:

• The employer’s expectations, if any, of employees to read or reply to work-related emails or answer work-related phone calls after their shift is over
• The employer’s expectations for different situations, for example depending on the time of day of the communication, the subject matter of the communication, and the individual initiating the communication, and
• The employer’s requirements for employees turning on out-of-office notifications and/or changing their voicemail messages when they are not working to advise when they will respond to communications.

Of note, the Act does not specify that the policy on disconnecting from work must create a right for employees to disconnect from work and be free from the requirement to engage in work-related communications outside their working hours. Rather, employee rights under the Act to not perform work are established through pre-existing rules, including those on hours of work and eating periods, vacation with pay, public holidays, and deemed work.

Employers should be cautious about giving employees the right not to perform work when the Act would otherwise permit it. Creating such a right, while not required by the Act, could create a greater right or benefit under the Act that would be enforceable under the Act.

Application of the Policy

Although employers must have a policy on disconnecting from work for all of their employees in Ontario, they are not necessarily required to have the same policy for all of their employees. In other words, employers can have a single policy that applies to all employees, or their policy can contain different policies for different groups of employees.

Copy of the Policy and Record-Keeping Requirements

Employers will have to provide a copy of the policy on disconnecting from work to all current employees within 30 calendar days of preparing or changing the policy. New employees will also have to be provided with a copy of the policy within 30 days of being hired.

The MOL’s guide clarifies this requirement, specifying that employers will not need to provide a copy of the policy on disconnecting from work to employees annually if the policy has remained unchanged from the previous year. Further, where it is required, the copy of the policy can be provided to employees as a printed copy, as an attachment to an email if the employee can print a copy, or as a link to an electronic document if the employee has a reasonable opportunity to access the document and a printer.

Employers must retain a copy of every written policy on disconnecting from work that was required by the Act for three years after the policy is no longer in effect.

In Our View

Employers who are required to implement a policy on disconnecting from work are required to do so by June of this year. Employers should take the necessary time to develop a policy to ensure compliance with the limited legislative requirements and consistency with workplace culture and expectations.

For more information, or for assistance in respect of the preparation and implementation of policies on disconnecting from work, please contact Kecia Podetz at 613-940-2752 or Pascale Robillard at 613-608-6716.