Employee demands for a “right to disconnect” are getting louder, fuelled in part by the growth in remote work arrangements. Here are the answers to five employer questions about the right to disconnect.
1. What is the right to disconnect?
Generally, it’s about employees disconnecting from work and not engaging in work-related communications outside working hours. Many European countries have adopted disconnecting-from-work legislation. Calls for right-to-disconnect legislation are now echoing in Canada.
2. Is there any legislated Canadian right to disconnect?
No. The only legislation around the right to disconnect is in Ontario. Effective January 1, 2022, Ontario’s employment standards legislation requires certain employers to have a written policy on disconnecting from work — but this doesn’t create any rights for employees to disconnect from work.
3. Why is it important that Newfoundland and Labrador employers think about the right to disconnect?
There are three key reasons:
• Be ready for what could be coming. Some other Canadian provinces and the federal government have indicated they are considering right-to-disconnect legislation, and more could follow.
• If you have employees who physically work in Ontario, regardless of your location, it’s likely you must comply with Ontario’s disconnecting-from-work legislation in relation to those employees. (However, this requirement doesn’t extend to your employees who don’t physically work in Ontario.)
• Even if you’re not required to, you can choose to implement a disconnecting-from-work policy as an employee retention and recruitment tool.
4. What might employers expect to see in right-to-disconnect legislation?
Ontario’s disconnecting-from-work legislation offers an indication:
• Provincially regulated employers with 25 or more employees must adopt a written policy on disconnecting from work. Employers aren’t required to have the same policy for all employees; the policy can dictate different terms for different groups of employees.
• The Ontario legislation 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, it doesn’t create any new rights for employees to disconnect from work, prohibit employers from communicating with employees after working hours, or specify that employees have a right to disconnect from work or be free from the obligation to engage in work-related communications completely after a certain time or typical work hours.
• The policy applies to all the employer’s employees covered by Ontario’s employment standards legislation, which defines “employees” expansively and includes management, executives, and shareholders if they otherwise meet the definition of employee. However, independent contractors are excluded.
• The Ontario legislation specifies the employer must include the dates on which the policy was prepared and any dates on which it changes the policy, but it doesn’t dictate what the policy must include. However, it leaves open the possibility for the province to require that the policy contain mandatory information in future.
5. What should a disconnecting-from-work policy look like?
It can stand alone or you can incorporate it into another policy, but it must comply with the applicable employment standards legislation, such as rules limiting hours of work. In addition to the basics every good policy should include, the policy could (and should, for some employers) address the following:
• the expectations concerning reading or replying to work-related emails or answering work-related phone calls after hours
• the required response times and how they might change based on different times of day, the subject matter of the communication, the sender, and so on
• the employees to whom the policy applies (in the case of a voluntary policy) and what expectations apply to which employees
• the expectations concerning activating appropriate out-of-office notifications when the employee isn’t responding to communications
To discuss this or any other legal issue, contact any member of McInnes Cooper’s Labour & Employment Law Team. Read more McInnes Cooper Insights and subscribe to receive those relevant to your business.
This article is information only; it is not legal advice. McInnes Cooper excludes all liability for anything contained in or any use of this article. © McInnes Cooper, 2023. All rights reserved.
Caroline Molloy is a management-side labour and employment lawyer based in McInnes Cooper’s St. John’s office. Caroline’s prior experience as employee and union counsel and her collaborative approach uniquely position her to advise and represent employers in a wide range of matters.
Contact Caroline at caroline.molloy@mcinnescooper.com or 709.724.8238.
