Plugging Into The “Right to Disconnect”: 5 Key Employer FAQs
Published:
1 décembre 2022
Author(s):
Updated September 5, 2024.
The COVID-19 pandemic drove remote work to unprecedented heights. Employee calls for greater flexibility, and cost savings for employers, have resulted in remote and hybrid work arrangements remaining in place. But along with those arrangements comes the challenge of separating work time from non-work time – and employee demands for a “right to disconnect”. To help all employers stay plugged in, here are the answers to five key questions about the right to disconnect.
1. What is the “right to disconnect”?
Generally, the “right to disconnect” is about employees disconnecting from work and not engaging in work-related communications, like emails, outside of working hours. A legislated right to disconnect originated in France in 2016; numerous European countries have now adopted disconnecting from work legislation. In December 2021, the European Parliament adopted a resolution calling for an EU law on the right to disconnect. And in 2024, Australia’s right to disconnect legislation took effect. Calls for a right to disconnect legislation are now being heard across the pond.
2. Have any Canadian jurisdictions legislated a “right to disconnect”?
In short, no. Ontario has, however, legislated in the area of disconnecting from work. Canada’s most populated province implemented the requirement for certain employers to have a written policy on “disconnecting from work” through amendments to the Ontario Employment Standards Act, 2000, when it passed Bill 27, Working for Workers Act, 2021. This requirement took effect on January 1, 2022. To date, Ontario is the only Canadian jurisdiction with “disconnecting from work” legislation. Importantly, however, the Ontario legislation does not create any rights for employees to disconnect from work.
3. Why is it important for all Canadian employers – not just Ontario employers – to be plugged into the “right to disconnect”?
Despite the lack of legislation relating to “disconnecting from work” in Canadian provinces and territories other than Ontario, there are several reasons why all Canadian employers are wise to stay plugged into the right to disconnect:
Future Legislation. Indications are that some other Canadian jurisdictions are currently considering right to disconnect legislation, and more could follow; it’s important that employers be ready for what could be coming. For example:
- P.E.I.’s September 2022 interim report published in connection with its ongoing comprehensive review of the Employment Standards Act includes a discussion about “Telework and the Right to Disconnect” (at page 26), suggesting a legislated right to disconnect could be coming down the pike in P.E.I.
- Quebec’s December 2021 Bill 799, Right to Disconnect Act, if passed, would require employers to develop a clear disconnection policy. And while Quebec has had right to disconnect legislation on the table in prior years, none of which passed, this might be the right time for it.
- The federal government’s February 2022 Final Report of the Right to Disconnect Advisory Committee concluded, “[a] legislative right to disconnect is the only way to effectively move forward with addressing the negative impacts of hyper-connectivity in the workplace and to effectively manage the use of workplace communications devices”, suggesting the federal government could very well bring forward a plan to include a right to disconnect policy for federally-regulated employees (such as those in the banking and the telecommunications sectors, for example). Any federal legislated “right to disconnect” would likely be implemented via amendments to the Canada Labour Code.
Ontario Employees. Employers must typically comply with the laws of the jurisdiction in which an employee works. So, if an employer in another province or territory has employees who physically work in Ontario, it’s likely they must comply with Ontario’s disconnecting from work legislation in relation to those employees – though the employer can, if it wishes, only do so in relation to its Ontario employees.
Retain & Recruit. A voluntary “disconnecting from work” policy – one the employer chooses to implement, even though it’s not required to do so – could be an effective employee retention and recruitment tool. As a result of COVID-19, many employers have transitioned to a remote work or a hybrid model, resulting in a blurring of the line between home life and work life. When competition for talent is high, a (well-drafted and properly implemented) voluntary “disconnecting from work” policy signals to both current and prospective employees that an employer is willing to assist employees with balancing their home and work lives. Indeed, more workers of all ages are placing increased value on work-life balance when selecting an employer.
4. What might employers expect to see in “right to disconnect” legislation?
Ontario’s “disconnecting from work” legislation offers a useful indicator of what employers might be able to expect in similar legislation elsewhere in Canada, at least initially.
Mandatory Policy. All provincially-regulated employers with 25 or more “employees” must adopt a written policy on “disconnecting from work” and provide all employees with a copy of the policy. The legislation doesn’t, however, require the employer to have the same policy for all employees; while it can, the policy can also dictate different terms for different groups of employees.
Definition. The Ontario legislation defines “disconnecting from work” as “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.” It’s important to note, however, that what the Ontario legislation doesn’t do is create any new rights for employees to “disconnect from work”. In particular, it doesn’t:
- Prohibit employers from communicating with employees after working hours.
- Specify that it’s a right of employees to disconnect from work or be free from the obligation to engage in work-related communications completely after a certain time or after typical “work” hours.
“Employees” Covered. The policy applies to all of the employer’s “employees” covered by the Ontario Employment Standards Act, 2000. The Act defines “employees” to include those who are part-time, full-time, flex-time, casual, fixed-term, on leave, on layoff, suspended, probationary and on strike/lockout, and some trainees and some students. Management, executives, and shareholders are also included, if they otherwise meet the definition of “employee”. Independent contractors are excluded.
Policy Contents. The Ontario legislation only specifies that the employer must include the date the policy was prepared and the date it made any changes to the policy. Beyond this, the legislation doesn’t dictate what the employer must include in the policy. It does leave open the possibility that the province can prescribe that the policy contain specified information, presumably by regulation.
5. What should a “disconnecting from work” policy look like?
A “disconnecting from work” policy can be a stand-alone document, or the employer can incorporate it into another of its policies. When drafting the policy, employers must ensure it complies with the applicable employment standards legislation (that of a province, or for federally-regulated employees, the Canada Labour Code), such as rules limiting hours of work. In addition to the basics that every good policy should include, a “disconnecting from work” policy could (and should, for some employers) generally address these topics:
After Hours Work. What are the employer’s expectations, if any, of employees to read or reply to work-related emails or answer work-related phone calls after hours?
Response Times. What are the required response times, and how might they change for different times of day, subject matter of the communication, sender, and so on? For example, are response times different for communications:
- Relating to urgent vs. non-urgent matters?
- Received from a colleague, a supervisor or a customer/client?
Application. To which employees does the policy apply, in the case of a voluntary policy, and what expectations apply to which employees? For example, since in Ontario managerial employees are generally exempt from the hours of work rules under its Employment Standards Act, 2000, an employer might want to establish greater obligations for managers to respond to after-hours communications than for non-managerial employees. Also, with more and more companies permitting flexible work hours, an employer might allow some employees to choose when they work, provided they complete their tasks. Different rights and obligations under the policy could be appropriate for these employees.
OOO Notifications. Are employees expected to activate appropriate out-of-office notifications, such as out of office email messages and voicemails, during times when the employee isn’t responding to communications?
Please contact your McInnes Cooper lawyer or any member of our Labour & Employment Law Team @ McInnes Cooper to discuss a “disconnect from work” policy for your workplace.
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