Treiber Law: The “Right to Disconnect”

Sometimes our media is absolutely terrible about reporting about changes to employment standards legislation.

Take, for example, the headlines in 2021 and 2022 in response to the Ontario government’s amendments to the Employment Standards Act, 2000 (the “ESA“) which required, effective June 2022, Ontario employers with 25 or more employees to introduce a workplace disconnection policy.  This was unfortunately dubbed by the media as creating an alleged “right to disconnect” and outlets like BlogTO and the Toronto Star rushed to declare that workers in Ontario could disconnect from work after-hours.

But if you read the news headlines and then reviewed the legislation and the guidance from the Ministry of Labour, you might be surprised to know that the media was a little disconnected (pun intended) from what the legislation actually requires.  

The legislation stipulates only the following:

• if an employer has 25 or more employees in Ontario, an employer must have a written workplace disconnection policy;
• the policy must address the topic of “disconnecting from work” which is defined under the ESA 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 policy must be dated;
• the policy must apply to all employees (though the policy does not have to be the same for all employees, i.e. you treat managers differently than non-managers);
• the policy must be in place by March 1 if on January 1 of that same year the employer had 25 or more employees in Ontario;
• the policy must be provided to employees within 30 days of it being implemented or, if implemented, within 30 days of an employee’s new hire;
• a copy of the policy must be retained for 3 years.

The legislation does not specifically create a “right to disconnect”.  In other words, an employer could have a workplace disconnection policy that specifically says that employees do not have a “right to disconnect” and that would satisfy the policy requirement under the ESA.  Though, this is of course, subject to the ESA‘s overtime or hours of work requirements.  

What will the recently announced federal legislation look like?

Last week, the federal government signaled in its Budget 2024 that it intends to introduce legislation to amend the Canada Labour Code to create a “right to disconnect” for federally regulated workplaces (e.g. banks, airlines etc.).  The text of that legislation has not yet been released but it remains to be seen whether federal legislation will go one step further than Ontario legislation and actually create a “right to disconnect,” as opposed to just a policy requirement.

Takeaways for businesses

If you are a provincially regulated business in Ontario with 25 or more employees you need to have a workplace disconnection policy.

If you are a federally regulated business, Treiber Law will continue to monitor the Budget and its implementation legislation and provide updates as they become available. 

If you have any questions or need assistance with drafting a workplace disconnection policy for your workplace, please contact Treiber Law at info@treiberlaw.ca 

 This article should not be relied on as legal advice or legal opinion.