Right to Disconnect
On June 2, 2022, Ontario’s “right to disconnect” law came into effect, a first in Canadian employment law. On the surface, this law requires employers to develop a policy allowing employees the right to disconnect outside of standard office hours. However, a closer look reveals that below the surface, this law does not provide employees with the freedom from after-hour work requests that they have been looking for. Unfortunately, it appears not much has changed since the Ontario Court of Appeal decided Hilton v Norampac Inc. nearly twenty years ago . In this case, our firm successfully argued that the employer’s new requirement of employees to be on-call from 5:00 pm Friday night to 6:00 am Monday morning was unreasonable and that the employee did not have an obligation to accept such a requirement. While the Supreme Court of Canada later declined to hear the employer’s appeal, it seems that despite the new right to disconnect law, the Ontario government has still not provided adequate protection for Ontario’s employees.
When working from home became a necessity due to the COVID-19 pandemic, employers began to take advantage of their employees’ ability to get work done anywhere, at any time. Instead of leaving the office at 5:00 pm and putting down work until they returned to the office the next morning, employees increasingly found themselves completing work tasks well outside of traditional office hours. This downside to working from home would ultimately lead the Ontario government to create the Working for Workers Act, the statute that mandates employers to create a written policy on disconnecting from work. Unfortunately, as our associate Jared Lecker explained to CTV News, “It’s very shiny and it looks very impressive, but once you look into it substantively, there’s no skin on the bones to this… it’s a law that essentially favours the employer.”
The law requires employers to have “a written policy in place for all employees with respect to disconnecting from work” and defines “disconnecting from work” 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.” However, the law only requires employers to create a policy and does not include any direction on what such a policy should say. Not only does the law allow employers free range to decide the substance of such right-to-disconnect policies, employers must only create such a policy if they employ twenty-five or more employees. Furthermore, the law does not apply to federally regulated businesses, including industries such as broadcasting, telecommunications, air and ground transportation and services, banking, and many more.
Speaking to CBC News, partner Matthew Fisher clarified, “What [the legislation] really does is it requires employers of a certain size in certain circumstances to make a policy. The problem is [the Ontario government is] relying on the good faith of employers…. There is nothing in the legislation that requires the policy to be reasonable.” Under the new law, an employer could create a right-to-disconnect policy stating employees “have a right to disconnect between 4:00 am and 4:15 am on Tuesday” and still be in compliance with the law.
One of employees’ biggest concerns about the law is whether they will be protected from employer retaliation if they refuse to comply with work requests after regular business hours. According to Lecker, “While there are sections in the law that aim to protect employees against reprisals or being disciplined, it’s still possible they could be overlooked for a promotion or a raise, or fired for another reason.” Other concerns include whether employees can bank disconnected time, essentially earning hours where they do not have to be connected and whether there are consequences for employers who violate their own right-to-disconnect policy. While employees do have the ability to report their employer to the Ministry of Labour for violating their own policy, if the policy itself does not provide a reasonable amount of time for employees to disconnect, there is not currently anything an employee can do.
If you have any doubts about the way you are being treated by your employer, call us. Our team of experienced Toronto Employment Lawyers at Lecker & Associates will assess your situation and provide legal advice to support you.
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