Ontario releases guidance confirming that employers have flexibility in creating ‎‎“disconnecting from work” policy

As we continue to approach the deadline of 2 June 2022 for employers to create a written policy on “Disconnecting from Work”, the Ontario Ministry of Labour, Training and Skills Development recently confirmed that the amendments to the Ontario Employment Standards Act, 2000, under Bill 27, (i) do not create a new right for employees to disconnect from work; and (ii) allow individual employers to determine the content of their disconnecting from work policies.

On 2 December 2021, the Ontario government passed Bill 27, the Working for Workers Act 2021 (Bill 27), which amends the Ontario Employment Standards Act, 2000 (the “ESA”) to require certain employers to develop a written “disconnecting from work” policy by 2 June 2022. 

As that deadline approaches, employers have struggled to determine what exactly their disconnecting from work policy should say and have held out hope that there would be further guidance on what is required. 

To assist employers in developing their disconnecting from work policies, the Ontario Ministry of Labour, Training and Skills Development (the “MOL”), has now released further guidance, which includes several key takeaways for employers, as follows:

1. Employers with 25 or more employees on 1 January must implement a disconnecting from work policy:

• All employers who had 25 or more employees in Ontario as of 1 January 2022, must implement a disconnecting from work policy by 2 June 2022;
• Employers must count all “employees” (as defined by the ESA) employed on 1 January, including, but not limited to, full-time, part-time and fixed-term employees as well as employees on leave or layoff;
• Employers are not required to include workers assigned by temporary help agencies within its count of employees;
• Employers with multiple locations in Ontario must count all Ontario employees to determine whether the 25 employee threshold has been met. For example, an employer that has 30 employees on 1 January spread across three locations in Ontario (e.g. 10 employees at each location) will have met the 25 employee threshold required for implementing a disconnecting from work policy;
• In 2023, and each subsequent year thereafter, employers who have 25 or more employees in Ontario as of 1 January, must implement a disconnecting from work policy by 1 March of that year;
• Employers with less than 25 employees on 1 January are not required to implement a disconnecting from work policy that calendar year, even if the number of employees increases to 25 or more employees later in that same calendar year; and
• Conversely, employers with 25 or more employees on 1 January are required to implement a disconnecting from work policy that calendar year, and cannot rescind the policy that calendar year, even if the number of employees decreases below 25 employees later in that same calendar year.

2. Contents of the disconnecting from work policy

• An employer determines the content of its disconnecting from work policy;
• Employers are not required to create a new right for employees to disconnect from work;
• The ESA does not specify the information an employer must include in its disconnecting from work policy, so long as the policy is about disconnecting from work.  The ESA 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.
• An employer must include the date the disconnecting from work policy was prepared as well as the date any changes were made;
• The written policy on disconnecting from work must apply to all of the employer’s employees in Ontario, even employees who are generally excluded from other provisions of the ESA (e.g. managers, salespersons, IT professionals, etc.); and
• An employer may choose to have multiple disconnecting from work policies for different groups of employees or differentiate between groups of employees in a single disconnecting from work policy.

3. Distribution of the disconnecting from work policy to employees

• Employers must provide the disconnecting from work policy to employees within 30 days of each of the following:
  • the disconnecting from work policy’s implementation;
  • any changes or updates to the disconnecting from work policy; and
  • a new employee’s date of hire.
• The disconnecting from work policy can be a standalone document or it may be included within a broader employee handbook;
• Employers can provide the disconnecting from work policy to employees as:
  • a hard-copy; or
  • on a computer, such as an email attachment or online on a company intranet. Employers taking this approach must ensure that employees are able to access and print the policy at work.
• Once in place, employers must retain a copy of the disconnecting from work policy for at least three years after the policy is no longer in effect.

The MOL guidance reaffirms that employers have significant flexibility in developing their disconnecting from work policy. Employers are able to exercise discretion in determining, for themselves, what to include in their disconnecting from work policy to address the unique needs of their workplace. This is a sensible approach as no one-size-fits-all policy could possibly account for the various needs of every type of workplace. For example, a single location factory is likely to have a very different disconnecting from work policy than an organization with offices spanning multiple provinces, countries, and / or time zones. 

Suggestions for what to consider including in a disconnecting from work policy

An employer developing a disconnecting from work policy should have the following considerations in mind:

• The employer’s expectations, if any, of employees to read or reply to work-related emails or answer work-related phone calls after their shift is over;
• The employer’s expectations for different situations depending on:
  • the time of day of the communication;
  • the subject matter of the communication; and
  • who is contacting the employee (for example a client, supervisor, or colleague);
• The employer’s requirements for employees turning on out-of-office notifications and / or changing their voicemail messages, when they are not scheduled to work, including when the employee is expected to be in a position to respond;
• The employer’s requirements for identifying important work related communications, such as using the terms “URGENT” or “PLEASE READ” in the subject heading; and
• How the disconnecting from work policy will interact with other rules under the ESA including with respect to hours of work and eating periods, overtime, vacation, public holidays and when work is “deemed” to be performed.

It is important to remember that the guidance documents published by the MOL do not have the force of law. However, such guidance could be persuasive in the interpretation of the Ontario Employment Standards Act, 2000 and therefore should not be disregarded by employers.

If you have any questions about how to implement a “Disconnecting from Work” policy, do not hesitate to contact any lawyer in our Ontario Employment and Labour Law Group.