It’s no secret that workplace norms and expectations have shifted dramatically over the past two years. While statistics vary, remote work has increased in Canada on average 25% since 2016, with Ontario holding the highest remote labor capability. This shift is undoubtedly welcome, as 70% of the Canadian workforce indicated remote work has had a positive influence on their daily lives. However, with great freedom comes great responsibility.
Enter Bill 27, Working for Workers Act, 2021.
Bill 27 requires most Ontario employers to develop and distribute a “right-to-disconnect” policy.
The Bill 27 amendment defines the term “disconnecting from work” as refraining from “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.”. Coming into force December 2, 2021, the amendment gives Ontario employers with more than 25 employees a June 2022 deadline for creation of a policy outlining “disconnecting from work”. The policy must then be distributed to the workforce within 30 days, as well as being distributed to all new hires within 30 days of hire.
Undoubtedly Bill 27 comes after the realization that one half of remote workers in Canada have developed weekend working habits and a lot of us would have to admit that we add to this statistic. Are we being flexible, or falling prey to the blurred lines? With the most recent amendments made to Bill 27, our failure to set work life balance standards for the entire organization could cost us.
As with most new labor law amendments, the guidance for the policy itself is vague, at best. With the apparent goal of positively impacting work life balance and minimizing burnout, Bill 27 comes with a lot of unanswered questions. As HR professionals, we all know that ambiguity with regard to legal amendments is a double edged sword. With Bill 27 including no concrete rules, per say, HR is left to implement holistic and cultural workplace changes which will align with the direction of Bill 27. This ambiguity also allows room for legal interpretations by employees in the future, with possibility of claims that their “right to disconnect” was infringed upon.
As with any new labor law addition or amendment, nobody wants to be the flagship court case.
Guidance for Bill 27 suggests some elements the “right to disconnect” might have, including; expectations of employees to read or reply to work-related correspondence after their shift is over and requirements for employees to turn on out-of-office notifications and voicemail messages when they are not scheduled to work, in order to communicate that they will not be responding until the next scheduled work day. However, the guidance also specifies that the policy does not need to include a right for the employee to disconnect from work and be free from the obligation to engage in work-related communications. So essentially, the policy is simply a declaration of expectations, keeping in mind that the ESA does already have some limitations on hours worked, mandated breaks and mandatory paid vacation.
If you are anything like me, you are thinking, well what’s the worst case scenario? What happens if I don’t nail this employee disconnection support effort? According to guidelines within the ESA amendment, if the employer’s policy on disconnecting from work does not create a greater right or benefit than any employment standard under the ESA, the policy is not enforceable under the ESA. Employers unwilling to outline a policy going above and beyond required time off, breaks and required work schedules, need to keep in mind that the policy they create likely won’t hold up in a court of law, but how will this fare for the employees’ rights?
As we saw in recent court confusion surrounding COVID-19 and constructive dismissal, (ex Taylor v. Hanley Hospitality Inc., 2021 ONSC 3135 and Coutinho v. Ocular Health Centre Ltd., 2021 ONSC 3076) developing situations are fertile ground for cases left up to interpretation. The employment law climate in Ontario has noticeably shifted to push for workers rights and given the state of the cutthroat recruitment scene, it may be wise for employers to follow suit. Holistic and cultural shifts toward increased workers rights, focus on mental health and support of a healthy work life balance, might just be the difference between a happy team and an expensive court case.
