Ontario’s newest bill – what is the right to disconnect law?

Ontario’s Newest Bill – What Is the Right to Disconnect Law?

On June 2, 2022, Ontario’s Working for Workers Act went into effect. The law requires all Ontario businesses with 25 or more employees to have a right to disconnect policy.

It doesn’t, however, dictate the contents of that right to disconnect policy or lay out penalties for violations. Instead, the new right to disconnect law provides employers room to design a policy that works for their business. What the right to disconnect means practically, however, will change as regulatory agencies create rules and court cases create precedent.

Disconnecting is defined by the Ontario Employment Standards Act as: “not engaging in work-related communications, including emails, telephone calls, video calls or sending or reviewing other messages, to be free from the performance of work.”

The right to disconnect law applies to all employees (part-time, full-time, or temporary) including remote workers and those employed through a staffing agency. It does not apply to contractors, whether incorporated or sole proprietors.

Canada’s right to disconnect

Currently, the right to disconnect is only legally entrenched in the province of Ontario, not the rest of Canada. In Canada, employment law is largely under the jurisdiction of the provinces. While the federal government has studied the matter and may introduce right to disconnect legislation, it would only apply to the minority of Canadians working for the government or in federally regulated industries.

While Ontario is the first Canadian province to introduce a right to disconnect, the Quebec government has studied the possibility of introducing legislation of its own. Other provinces have yet to take a firm stance on a right to disconnect and aren’t likely to take one until the rollout of Ontario’s new law is complete.

Based on employment law trends, we can make a few predictions:

  • Anti-regulatory sentiment in Alberta, Saskatchewan and Manitoba makes it unlikely that those provinces will implement a right to disconnect unless and until it becomes the norm across the country
  • Maritime employment law trends tend to be similar those in Ontario and Quebec, so we could see a right to disconnect evolve in New Brunswick, Nova Scotia and Newfoundland and Labrador, with carve outs for seasonal and resource workers
  • BC has indicated that it is not looking at a right to disconnect at this time, but its history of worker-friendly employment law suggests that a disconnect law may be on the way.

The lack of an explicit right to disconnect outside of Ontario doesn’t mean that Canadian remote workers are completely, though. Provincial employment legislation puts strict limits on time off, rest periods, the treatment of workers, and overtime in Canada. While employment standards can sometimes be fuzzy on work outside of normal hours, (which the new right to disconnect law aims to clean up), courts in Canada often favour the worker in cases of employer overreach.

How can companies ensure compliance with the right to disconnect law?

What should a right to disconnect policy look like?

Like all HR policies, right to disconnect policies are most effective when they’re easily understood and implemented. The Ontario government has given companies much leeway in how they frame their right to disconnect policy, but not the right to override the Ontario Employment Standards Act. Right to disconnect policies should meet or exceed the ESA’s rules around hours of work, schedules, time off, and overtime. They should also be sensible and justifiable. Don’t limit employees’ right to disconnect just for the sake of it; do limit it when there is a clear and critical business need.

A right to disconnect policy should include or reference:

  • To whom the policy applies  
  • An outline of its basic purpose and the company’s commitment to it
  • The ESA definition of the right to disconnect
  • What disconnecting looks like for employees of this company
  • Under what circumstances an employee might be required to work above and beyond normal hours of work

Right to disconnect policies that don’t meet or exceed the ESA and do not adequately cover the above core elements are unenforceable and ultimately uncompliant.

How should employers present their right to disconnect policy to employees?

Companies should present their right to disconnect policy during the onboarding process, alongside other core company policies including hours of work, vacation, and performance expectations. Right to disconnect policies do not need to be outlined in employment contracts or offer letters. Instead, companies should ensure that their right to disconnect policy is on file and easy to find, for example in their employee handbook, and with any revisions clearly marked.

How can companies located outside of Canada comply with the right to disconnect?

International companies hiring in Canada will be impacted by the new right to disconnect law in one of 3 ways:

  1. International companies that employ Canadian contractors only, and who do so compliantly, are not required to have a right to disconnect policy on file.
  2. International companies that employ 25 or more Canadian workers through a local subsidiary are required to have a right to disconnect policy on file.
  3. International companies that employ Canadian workers through an Employer of Record PEO should implement their partner’s policy, unless they have an internal policy of their own which meets or exceeds the PEO’s policy.

Companies that aren’t required to have a right to disconnect policy may find it prudent to have one on file. As the right to disconnect becomes normalized in the Ontario talent market, small businesses that don’t have a policy may find it harder to compete for talent. The significant space that Ontario has left for future regulation may mean that ultimately, all companies will be served by having a disconnect policy on file.

How does the right to disconnect affect PEOs?

The Working for Worker’s Act leaves a lot of room for employers to create policies that work best for their unique needs, and for future regulation and precedent. As a result, some categories of workers aren’t clearly specified in the act. While the new right to disconnect law clearly requires that workers at staffing agencies are covered by it, it’s not so clear how workers employed through a PEO will be treated.

Unlike in the USA, PEOs and EORs aren’t a regulated industry in Canada. There is no legislation specific to how PEOs and EORs operate, and workers hired through a PEO aren’t recognized as a special category in employment law. Because of this, laws that are designed to regulate staffing and recruiting agencies are sometimes, but not always, applied to PEOs. That’s why it’s important to work with a PEO with real local experience!

Responsible, proactive PEOs that put compliance first should have a right to disconnect policy both for their own employees and one that covers everyone they hire on behalf of their clients. PEOs must also educate their clients regarding the employment law requirements, and likely upcoming regulations, everywhere their clients hire workers.

As jurisprudence evolves in Ontario, and other provinces explore introducing a right to disconnect of their own, the consequences of not having a right to disconnect policy on file may become more serious.  

How does Ontario’s right to disconnect compare to law in other countries?

Ontario is the first Canadian subnational government to introduce a right to disconnect, but it follows in the footsteps of several countries with similar laws. The movement towards a right to disconnect has been picking up steam since France passed the first law in 2017.

France

In 2017, France passed legislation requiring employers with 50 or more employees to negotiate a right to disconnect policy with the workplace union. If these parties can’t reach an agreement, the company must create a minimal right to disconnect policy governing after hours technology use. Like the Ontario Working for Workers Act, French law doesn’t specify exactly what a right to disconnect policy should contain.

Italy

Also in 2017, Italy introduced its own right to disconnect. Its legislation applies to flex work arrangements, but not to collocated or permanently remote workers. The law requires employers to work with employees to establish normal working hours for flex arrangements, and then stick to them.

Philippines

The Philippines also introduced a right to disconnect in 2017. The law bans requiring employees to work outside of regular hours, contacting employees for work reasons outside of normal work hours, and punishing employees who don’t respond to communications during rest hours.

Spain

In 2018, Spain passed similar legislation, requiring companies to create a right to disconnect policy, after consulting with workers. Like the French and Ontarian laws, Spain’s doesn’t include specificities or outline penalties for employers violating the right to disconnect.

Portugal

In 2021 Portugal introduced a right to disconnect law. Unlike the French and Spanish laws, Portugal focused on employers having a duty to refrain from contacting employees outside of work hours and imposes penalties on employers who violate it.  

Slovakia

Slovakia also introduced a right to disconnect in 2021. Its law is an amendment to the Labour Code which defines three categories of workers, home workers, remote workers, and those working temporarily from home, who enjoy this right. Slovakia defines the right to disconnect as being able to refrain from work during rest periods, vacations, and holidays.

Ireland

Ireland introduced its Code of Practice on the Right to Disconnect in 2021. The code provides workers with the right to disconnect, prevents them for being punished for exercising it, and imposes a duty on employers to respect the right to disconnect. The code applies to all workers, in all industries. As in many other countries, Irish employers are required to create individualized policies after consulting with their employees. Unique to Ireland, though, is the requirement that companies complete regular policy reviews and implement a complaints process.

Belgium

In 2022, Belgium introduced a right to disconnect via Royal Decree that prevents employees working for the federal government from being contact outside of normal working hours. This right does not extend to employees in the private sector.

Greece

In 2022, Belgium introduced a right to disconnect via Royal Decree that prevents employees working for the federal government from being contact outside of normal working hours. This right does not extend to employees in the private sector.

While the movement towards a right to disconnect is winning legislation in more countries every year, the content of those laws is driven more by the existing local framework and culture. Each version of the right to disconnect is built on existing employment standards and tempered by local economic needs.

In contrast to many other versions of the right to disconnect, Ontario’s is expansive in terms coverage. All companies that employ 25 or more workers must have a written right to disconnect policy on file unless those workers are employed as contractors. International companies that hire in Canada are no exception.

How to disconnect from work at home

Now that Ontario employers have right to disconnect policies in place, everyone is signing out on time each Friday afternoon and not checking their email again until Monday morning, right? Not quite. It will take time to see how much the Working for Worker’s Act will impact work life balance and company culture. Managers and individual workers both have a role to play in making the right to disconnect a real work norm.

Managers should take the right to disconnect seriously, modelling work-life balance and respecting the boundaries of their team members. Don’t request updates outside of work hours, except in emergencies. Don’t send emails late at night to be read “in the morning.” Don’t push the limits of company policy to meet deadlines; instead, think through project planning to find efficiencies. The right to disconnect may seem designed to protect workers and workers only, but businesses stand to benefit from it too. Think of the right to disconnect as another compliance tool. Once you have a policy in place, many grey areas become clear.  

Employees should take the right to disconnect to heart. Because most remote employees work out of their home, it’s easy for boundaries between work and life to fall by the wayside. The right to disconnect is designed to help employers and employees set and stick to meaningful boundaries. As a remote worker you should:  

  • Fully log out of work systems at the end of the day. Unless your contract requires you to be on call, you are in the middle of deployment, or there is a work emergency, there is no need for you to keep an eye on things.
  • If possible, have separate a work computer and phone. This creates a physical barrier between your work and personal life and has the added benefit of improving IT security for your work documents and contacts.
  • If possible, keep your work to one room or nook in your home. This is an additional physical barrier between your work and personal life, forcing you to “leave the office” at the end of the day and fully committing to work during work hours.  
  • Clearly communicate when you’re “in office” and “out of office” to your team and contacts. When you’re on holiday, set an out of office message on your email. When you’re done for the day, let your team know you’re going offline and mark your status accordingly.
  • If your contract does require on call hours, stay logged into one method of communication and have a specific channel or process for on call and emergency communication. If you’re in sales, that might mean responding to emails and calls from prospects. If you’re in IT that might mean responding to anything in your emergency channel, or any system alerts.

How we can help

Canadian Payroll Services hires, onboards, and payrolls Canadian remote workers so that you can focus on your core business. As a PEO and Employer of Record, we provide ongoing compliance services, recommendations, and employment law briefs. Our certified HR account managers and payroll practitioners are experts in Canadian employment and payroll rules and keep on top of legislative changes so that you don’t have to. We keep you compliant with Ontario’s right to disconnect and all other employment standards.   

Want to learn more about how Canadian Payroll Services can help you stay compliance with changes in employment law? Get in touch!

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