“Right to Disconnect”: Ontario Law Has Large Gaps

Ontario’s ‘Right to Disconnect’ law came into effect on June 2, requiring companies to develop policies allowing employees to disconnect outside of regular business hours, but what does that mean? practice ?

The new law — the first of its kind in Canada — has major shortcomings and ultimately adds little to existing laws, according to two labor lawyers who spoke to CTVNews.ca.

“It’s very shiny and it looks very impressive, but once you examine it thoroughly, there’s no skin and bones to it,” said Jared Lecker, an associate of Lecker & Associates specializing in labor law and human rights in the workplace. a telephone interview.

Here’s what you need to know about what the law says, how it came about, what the major loopholes are, who’s excluded, and more.

WHAT THE LAW SAYS?

The new law is part of the Labor Labor Law. It requires employers to have “a written policy in place for all employees with respect to disconnecting from work” and requires that all employees receive a copy within 30 days of its creation or if changes are made to a policy. existing policy.

The law defines “disconnecting from work” as “not engaging in work-related communications, including emails, phone calls, video calls, or sending or reviewing other messages, in order to to be free to carry out the work”.

Legal experts, however, say the way Ontario’s law is written is highly bureaucratic and doesn’t cover important new areas.

“It creates nothing more than an obligation for an employer to have a policy and most employers, in my view, will not create a substantive right to disconnect,” said Daniel Lublin, founding partner of Whitten & Lublin, a law firm specializing in employment and labor law, said in a telephone interview.

“I have a very dark vision of it. It’s just another procedural hullabaloo.

Lublin said it allows companies to write policy in a way that maintains some ambiguity or gray area — for good reason.

“How do you effectively run a business if there is an emergency and everyone has the right to avoid answering emails after hours? I certainly couldn’t run my business that way, and I think a lot of business owners feel the same way.

Lecker said questions and details about what can be sent or communicated after hours, what can wait until later, which employees must respond immediately and which ones don’t, are left to companies. to determine it.

“All it’s saying is that there needs to be this written policy in place for all employees. So as long as they have a “policy” in quotes about what it means to disconnect from work…these [details] are left to individual companies,” Lecker said.

Even lawyers don’t know what happens if an employee refuses to respond to after-hours business communications because the law is intentionally left vague, he said, adding that it may be up to the courts to determine it.

WHO IS AND IS NOT INCLUDED IN THE LAW?

The law applies to all employers in Ontario who have 25 or more employees on the first day of each calendar year. However, it excludes 39% of private sector workers in Ontario, as the law does not apply to federally regulated businesses. These industries include air and ground transportation and services, all banks, most federal Crown corporations, port services, broadcasting, telecommunications, and any business essential to the operation of these businesses and services.

HOW DID THE LAW COME?

The Work for Workers Act was proposed by the provincial government in 2021 in response to concerns about burnout, particularly during the pandemic, when working from home meant the lines between work and home were still more blurred.

In 2017, France became the first country to pass such a law, granting workers the right not to respond to work-related communications outside working hours and prohibiting companies from penalizing employees who do not respond. Other countries, including Italy, Spain and Ireland, have since followed suit. In Germany, where it is not enshrined in law, companies such as Volkswagen and Henkel have nevertheless implemented policies with similar objectives.

WHAT ARE THE MAIN FAILURES?

According to Lublin, a major shortcoming is the line that states that “if the employer’s disconnection from work policy does not create a superior right or benefit, the policy is not enforceable under the ESA.” [Employment Standards Act].”

“What they are saying is that there is no legal right to disconnect… The Department of Labor will not do anything unless the employer creates more than necessary and refuses to follow it ”, explained Lublin.

“What employer would do that?” »

The law is so vague and broad, Lecker said, that a company could in theory be in compliance even if its work disconnect policy only applies from 5:59 a.m. to 6:01 a.m.

“As long as they don’t contact you between those two minutes, they’re on the mend,” he said of the extreme example, adding that it’s a law that essentially favors the employer.

WHAT IF AN EMPLOYEE IS CONTACTED OUTSIDE OFFICE HOURS?

A major concern for many employees is the consequences if they postpone after-hours work requests. Could they be fired? Would this jeopardize their chances of promotion?

Lecker said those concerns are legitimate. Although there are sections in the law that are meant to protect employees from retaliation or disciplinary action, it is still possible that they could be passed over for a promotion or a raise, or terminated for some other reason, he said. -he declares.

“The risk is always that they might decide you’re more likely to be restructured than your colleague who says, ‘please feel free to contact me any time,'” Lecker said.

“If someone came to me and told me they were contacted outside of logon hours, I don’t even know what we would do to try to remedy the situation. »

CAN I GET TIME “IN PLACE”?

Some clients have asked lawyers if they can get “compensatory” time, for example, where they can bank hours without needing to be logged on. As the law currently stands, the answer is no; there is no system to save hours without being connected, according to Lecker.

WILL THE LAW BE EXPANDED LATER TO GIVE MORE GUIDELINES?

For now, there is no indication that the law will be changed.

WHAT ABOUT FEDERALLY REGULATED WORKERS?

While there are no equivalent “work disconnect” laws for federally regulated industries, there are other provisions in the federal sphere for various industries that protect the borders of workers in other ways. said Lublin and Lecker.

There are guidelines regarding the number of hours they can work, vacations, holidays, and paid time off. Truckers, for example, must have a certain break time between their shifts for safety reasons.

“It’s not exactly the same, but they have similar rights to disconnect, if you want to put it that way, which have a bit more bite as it is, but not that general right to have a balance work-life,” Lecker said. .

ARE OTHER PROVINCES CONSIDERING THIS LAW?

While the pandemic and Ontario have put the “right to disconnect” on the radar in other parts of the country, no other province is even close to putting anything into law, with most appearing to embrace a wait-and-see approach, the lawyers said.

Employment standards legislation is fairly comparable across jurisdictions across Canada, Lublin noted.

“They all seem to copy each other in some way and Ontario seems to be leading the charge. So you can see another province getting into it with slight variations.

HOW CAN COMPANIES OPERATE BETTER?

According to Lublin, the law is a political game designed to generate votes “riddled with loopholes.” But he noted that some companies might take this new law seriously and do the right thing by creating a clear policy and explicit guidelines.

“Some companies will actually adopt it in order to attract and retain talent,” he said.

“They’ll create something they didn’t need to create, but in doing so, give it some teeth…There’s an opportunity here if we think positively for a second – how companies attract and retain talent and position themselves as a workplace that is super flexible. »

WHAT ARE SOME COMPANIES SAYING?

CTVNews.ca has contacted several companies to get a sample of how they are approaching the new policy. Here’s what some of them had to say.

IBM Canada said in an email that its new policy complies with the law and encourages employees to prioritize work-life balance. “The new policy also encourages IBMers to use many of the programs and policies we already have in place as part of our efforts to maintain a supportive and balanced culture (i.e., wellbeing programs being, flexible working hours, holidays, etc.). The company said it’s also looking for ways to “disconnect” that boost work-life balance and well-being.

Enbridge said in an email that it has guidelines for disconnecting from work while managing its business and operational requirements. The energy company said that while the policy “generally means not engaging in work-related activities and communications, including emails, phone calls, video calls, or sending or l ‘review of other messages when they will be away from work during normal working hours’, how and when an employee can disconnect from work will depend on factors such as their role, business needs and other considerations such as employment agreements and applicable collective agreements. The company noted that it operates critical energy infrastructure assets that require continuous 24-hour operation and said its work disconnect policy is “designed to work with Ontario employment standards. and collective agreements and does not modify or supersede them”.

Google said in an email that it already has guidelines in place that align with Ontario’s new law, including posting employees from work outside of business hours. He also highlighted existing policies that gave employees flexibility and choice, including flexible work weeks, “work from anywhere” schedules and “reset days” that allow employees to recharge.

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