March 21, 2022

By: Mark Lahn

In December 2021, the Working for Workers Act, 2021 came into effect. One key change that this legislation made is the requirement for certain workplaces to implement a disconnecting from work policy. News and social media commentary about the legislation made sweeping headlines such as “It’s Now Illegal For Your Employer to Contact You After Hours.” But these flashy headlines are not quite accurate.

In this article, we outline the important changes that the Working for Workers Act, 2021 implements related to disconnecting from work policies so that your business can be prepared.

What Changes did the Working for Workers Act, 2021 make?

The Working for Workers Act, 2021 received royal ascent on December 2, 2021 and implemented new sections to the Employment Standards Act (“ESA”). The two main changes implemented are the requirement for some businesses to have a written disconnecting from work policy as well as a prohibition against Non-Compete Agreements for certain circumstances.

When do these changes take effect?

Impacted businesses have until June 1, 2020 to implement a written disconnecting from work policy.

Does every business need to have a disconnecting from work policy?

Only businesses that employ 25 employees or more people in Ontario as of the January 1 of each year will need to comply with this legislation. This includes the total of all employees if your business has multiple locations.

This means that if your business has 20 employees as of January 1, 2021, you may, but do not need to implement a policy about disconnecting from work. However, if you do have 25 or more employees next year, then you will have to implement such a policy.

It would be prudent for organizations with fluctuating numbers of employees to consider proactively developing a policy so that it is available in case the organization is required to have one in the future.

Do these changes mean that an employer can no longer contact an employee after hours?

Not quite. The legislation simply requires a written policy on disconnecting from work, which is defined 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 legislation does not create a right to disconnect from work. This right is already included in the ESA in various ways such as the maximum number of hours an employee can work in a week, paid vacation, etc. The ESA also defines when work is deemed to be performed, which could include when an employer contacts an employee after hours.

The structure and impact of this policy will depend entirely on the nature of the organization and its operational needs. For example, some businesses may have on-call employees who are paid for and required to respond to work-related communications after normal business hours.

The point of the policy is for an organization to define boundaries which allow an employee to not engage with work-related communications when their regular workday is over.

What are the requirements of a disconnecting from work policy?

The legislative requirements of the policy remain minimal at this time, however regulations may be implemented in the future which prescribe specific content of the policy. The current requirements include:

• Provide a written copy of the policy within 30 days of it being developed to each employee, or within 30 days to a new employee joining the organization
• Include the date the policy was prepared and the date any changes were made to the policy
• Retain or arrange for some other person to retain copies of every written policy on disconnecting from work required for three years after the policy ceases to be in effect.

Can a business have multiple disconnecting from work policies?

Yes, an employer could have different policies for different types of employees. For example, it may make sense for managers in a corporate office to have a different policy than front-line retail workers.

Suggested Policy Elements

As mentioned, the actual content of the policy is up to each business and will vary from industry to industry. The following elements may be useful:

• When the employer expects an employee to respond to work-related communications after their regular work day is over
• What kinds of communications the employee should respond to (e.g. client communications, emails or phone calls from management, chat messages, etc.)
• Requirements for out of office voicemail and email auto-responders
• Who to contact about concerns related to disconnecting from work

Other Policy Considerations

It is important to understand when drafting a disconnecting from work policy that you may be creating standards above and beyond the minimum standards legislated in the ESA. Care should be taken to ensure the policy does not create unrealistic new rights for employees.

As well, organizations in a unionized environment must consider any collective agreement provisions in drafting the policy, as well as the usual requirements for unilaterally implementing a new policy in a unionized workplace.

Need help developing a disconnecting from work policy?

Weilers has a team of experienced employment and labour lawyers who are available to assist you in developing a disconnecting from work policy which will meet the needs of your organization.

Contact us today to learn more about how we can help.