Policy on electronic monitoring to be in place by October 11, 2022

August 3, 2022

Policy applies to employers of more than 25 people in Ontario

As I advised on February 24, the government of Ontario announced the introduction of a requirement for employers of more than 25 people to tell their workers if and how they are being monitored electronically.

The requirement was added to the Employment Standards Act, 2000 (ESA) on April 11, 2022 and the government has now provided guidance for employers.

This requirement applies only to businesses and organizations that employ 25 or more employees in Ontario on January 1 of any year.

For those organizations with 25 or more Ontario employees on January 1, 2022 there is a special rule that applies in this first year for a written policy on the electronic monitoring of employees to be in place by October 11, 2022.

A copy of the policy must be provided to employees within 30 calendar days of being prepared or revised, and if the employee is a new hire, within 30 days of hire.

Determining number of employees

The number of employees is the number employed in Ontario on January 1, 2022.

The employer must count the individual number of employees, 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.

Where an employer has multiple locations, all employees employed at each location in Ontario must be included when determining whether the 25 employee threshold has been met.

If your business or organization does meet this 25 employee threshold, or you believe is close to the threshold, the full guidance for the definition of “employee” for these purposes can be found on this page of the government of Ontario website:

https://www.ontario.ca/document/your-guide-employment-standards-act-0/written-policy-electronic-monitoring-employees

General guidance

The policy should apply to all employees though different provisions may apply to different employees if desired.

The policy must include:

  • A statement on whether an employer engages in electronic monitory of employees or if an employer does not electronically monitor employees, the policy must specifically state this;
  • A description of how and in what circumstances an employer may electronically monitor employees;
  • The purposes for which the information obtained through electronic monitoring may be used by an employer;
  • The date the policy was prepared; and
  • The date any changes were made to the policy.

The requirement to introduce the policy does not establish a right for employees not to be electronically monitored by their employer, nor does it create any new privacy rights for employees.

The policy does not affect or limit an employer’s ability to use information obtained through the electronic monitoring of its employees in any way it sees fit. An employer is required to state in its written policy the purposes for which it may use information obtained through electronic monitoring.

I hope you find this information helpful.

Please contact me if you have questions about whether the number of employees in your organization meets the threshold, or for assistance or further details on the drafting and implementation of the required policy.