As I informed you in my client update of December 6, the Ontario government passed Bill 27, Working for Workers Act, 2021 on December 2, 2021. This Bill introduced significant changes to workplace laws, including amendments to the Employment Standards Act, 2000 (“ESA”).
One of the most noted of these amendments is the requirement of employers that employ 25 or more employees to have a written policy with respect to ‘disconnecting from work’.
The requirement is for the employer to clarify its policy regarding disconnecting from work and to make this written policy available to all employees by June 2, 2022.
To be clear, the employer is not required to create a new right for employees to disconnect from work and be free from the obligation to engage in work-related communications in its policies.
Those employee rights under the ESA to not perform work have been established through other ESA rules, such as hours of working periods, vacation with pay and public holidays.
For companies that meet the 25 or more employees threshold, we have prepared a draft template package to assist you in the preparation of your own Disconnecting From Work Policy. There is also an accompanying series of Questions to Assist in Preparing Your Disconnecting From Work Policy
Organizations with fewer than 25 employees may also find it helpful in clarifying disconnecting from work guidance, even though there is no requirement to do so.
The template and question package is in .docx format and can be accessed and downloaded here:
Questions to Assist in Preparing Your Policy (these are also below)
Template: Disconnecting From Work Policy
The Ministry’s guidelines can be accessed at this page on the government of Ontario website: https://www.ontario.ca/document/your-guide-employment-standards-act-0/written-policy-disconnecting-from-work#section-2
I hope you find this information helpful. Please contact me if you require assistance in preparing the final policy for your organization.
Questions to assist in construction of Disconnect From Work Policy
The downloadable template has been prepared only as a guide that should be revised to incorporate the particular circumstances of your business.
It is not necessary to answer all of the questions, but you may find them helpful in evaluating what you should include in your policy.
Who is required to have a written policy?
Employers with 25 or more employees in Ontario on January 1 of any year are required to have a written policy on disconnecting from work.
- It is the individual number of employees that are counted, and not the number of “full-time equivalents.”
- Part-time employees and casual employees each count as one employee, regardless of the number of hours they work.
- When determining the number of employees you must consider multiple locations within Ontario, related employers, and temporary help agency considerations.
- If you have a total of more than 25 employees but fewer than 25 employees in Ontario you are not required to have a written policy.
- The term “employee” is defined in Section 1(1) of the ESA
The requirement for a policy does not apply to the Crown, a Crown agency or an authority, board, commission or corporation whose members are all appointed by the Crown and their employees.
2. What is required in the policy?
The legislation is limited to a policy that must address “disconnecting from work” and include the date the policy was prepared and the date any changes were made.
Other than these requirements, the ESA does not specify the information the employer must include in the policy nor does it specify that the policy must be a particular length.
“Disconnecting from work” is defined in the ESA to mean “not engaging in work-related communications, including emails, telephone calls, video calls, or sending or reviewing other messages, so as to be free from the performance of work.”
3. Does the policy have to be the same for all employees?
No. The policy must apply to all of an employer’s employees in Ontario, including management, executives, and shareholders if they are employees under the ESA.
However, there is no requirement for the employer to have the same policy for all employees. In many cases it may be beneficial or necessary to outline different policies for different employees.
4. When must an employer have a disconnecting from work policy in place?
- First year of requirement: Employers with 25 Ontario employees or more must have a written policy on disconnecting from work before June 2, 2022.
- Beginning in 2023 (and years that follow): Employers with 25 or more Ontario employees on January 1 of any year must have a policy in place before March 1 of that year.
5. How must the policy be provided to employees?
Employers are required to provide a copy of the written policy to all employees within 30 days of:
- The policy being prepared;
- The policy being changed;
- A new employee being hired.
The policy may be provided as:
- A written and printed policy;
- An attachment to an email if the employee can print a copy;
- A link to the document online if the employee has a reasonable opportunity to access the document and a printer.
4. What should an Employer consider when preparing a policy?
The Ministry’s guidance says that the policy may set out employer expectations for different situations.
As noted above, the policy may differ according to the employee’s position and/or responsibilities. All expectations for all employees may be included in a single Disconnect From Work Policy or you may find it beneficial to have different policies for different employees, such as management employees.
It may also vary according to other expectations such as:
- Time of day of the communication;
- Subject matter of the communication;
- Who is contacting the employee (for example the client, supervisor, colleague);
- Employer expectations, if any, of employees to read or reply to work-related emails or answer work-related phone calls after their shift/normal work hours are over
- there may be some communications that can be sent to employees after hours but do not need to be read or responded to until an employee is on shift/actively working
- Employer requirements for employees turning on out-of-office notifications and/or changing their voicemail messages, when they are not scheduled to work, to communicate that they will not be responding until the next scheduled work day.
You may also want to consider any logistical information or suggestions:
- Calls to replace absent staff members;
- Overtime calls;
- Calls to on-call employees;
- Calls about emergency circumstances that cannot wait until the staff member returns to work;
- How communications will be made.i.e. phone, text, and/or email
- Can staff be encouraged and/or directed to schedule emails to be sent only during an individual employee’s work day?
- Ways in which after hours communications might be reduced as much as possible
