In the wake of the COVID-19 pandemic, there has been much discussion in workplaces, in the news and on social media about burn-out, constant connectivity and extended work days while working from home. The social tide is shifting, with many employees seeking protection of their “off-hours” in order to maintain a work-life balance. In response to this, on October 25, 2021, the Ontario government passed Bill 27, the Working for Workers Act, 2021. The Bill contained an amendment to the Employment Standards Act, 2000 (the “ESA”), requiring Ontario employers to implement a “policy with respect to disconnecting from work” by June 2, 2022. 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.”

Currently, Ontario is the only province in Canada that has introduced this requirement.

The question on every in-house lawyer’s, human resource professional’s and operations professional’s mind is: what really is the right to disconnect? Are employers actually prohibited from contacting their employees for a specific period of time during the day? The short answer to this question is no – but really, it’s up to the employer.

Related to this topic, Dentons Canada’s Employment and Labour group has developed a ready-to-use Ontario Disconnecting from Work Policy template, available for a flat fee. Click here to sign up to receive a copy.

The basics

The basic requirements of an Ontario “disconnecting from work” policy are as follows:

• Employers with 25 or more Ontario employees as of January 1^st of any year require this policy. The 25 employee requirement includes both part-time and casual employees.
• Where an employer has multiple locations, all employees at each location count toward the 25 employee threshold.
• All employees must be provided with a copy of this policy within 30 days of the policy being prepared, or updated.
• Employers must retain a copy of this policy for three years after the policy is no longer in effect.

What really is the “right” to disconnect?

At this point in time, the only substantive requirement that employers must meet is simply to have a policy that addresses disconnecting from work. The ESA states that a policy with respect to disconnecting from work must contain information as may be prescribed, but there are currently no regulations that explain what this prescribed information is. So ultimately, there really isn’t a “right” to disconnect in Ontario, only a requirement imposed on employers to have a “disconnecting from work” policy in place by June 2^nd, 2022. Employers are free to determine the actual contents of the policy.

Although Ontario is the first jurisdiction within Canada to introduce the requirement of a “disconnecting from work” policy, it is not the first jurisdiction globally to do so. Spain, Italy and Scotland have all addressed the right to disconnect, whether through legislation or proposed policy. Below, this insight examines what each international jurisdiction has implemented, and provides some perspective on what may lay ahead for Ontario.

“Digital Disconnection” in Spain

Workplaces in Spain are required to have a “Digital Disconnection” policy. The “Digital Disconnection” policy applies to both employees who work on company premises and employees who work remotely. Like in Ontario, the contents of a Spanish “Digital Disconnection” policy are not explicitly set out. However, in Spain a “Digital Disconnection” policy must address 1) the use of IT tools outside of working hours, and 2) information obtained by the employer through the use of geolocation systems and the privacy interests of employees.

In Spain, employer violations of a “Digital Disconnection” policy could result in:

• Administrative fines up to EUR 225,000;
• Moral harassment claims;
• Accidents outside of the workplace being considered “workplace accidents”; and
• Employee claims for severance pay and damages.

The right to disconnect in Italy for “smart workers”

In Italy, the “right to disconnect” refers to the employee's right to be able to disconnect from work and refrain from engaging in work-related electronic communication, such as emails and other messages, during non-work hours and holidays. The goal of this right is to protect employee health and safety, and to ensure fair working conditions. Like in Ontario and Spain, the requirement for a “right to disconnect” is general in nature, without many specifics. However, some employers in Italy are choosing to restrict work communications to between the hours of 8:00 a.m. and 8:00 p.m.

Italy has two methods of remote-working: “tele-working” and “smart-working”. Teleworking is defined as “work using information technology within the framework of an employment contract or relationship, in which the work, which could also be carried out on the company's premises, is regularly carried out outside the company’s offices.” Smart-working is a flexible arrangement in which work takes place only partially outside an organization’s premises, and employees have flexibility regarding working hours, so long as they stay within the legislated minimum and maximum working hours. Importantly, only employees who perform “smart-working” have the “right to disconnect”, while employees who perform “tele-working” do not.

Unlike in Ontario and Spain, the “right to disconnect” in Italy must be included in individual employment agreements, as opposed to in employment policies.

In Italy, unlike in Spain, there are no enforcement mechanisms or administrative fines to ensure that employers comply with the right to disconnect.

Discussions on disconnecting in Scotland

In Scotland, the Scottish government does not have jurisdiction over employment law matters. These matters are regulated by the UK government. However, in December 2021, the Scottish government announced their Public Sector Pay Policy for 2022-2023. In this policy, the Scottish government included “a requirement for all [public sector] employers to have meaningful discussions with staff representatives about the Right to Disconnect for all staff, discouraging an 'always on' culture”.

The Scottish government will be releasing a technical document in the spring, outlining what those discussions might look like.

The Scottish government is also considering piloting a four-day workweek, and is encouraging employers to maintain a hybrid workplace.

Next Steps

Dentons Canada’s Employment and Labour group has developed a ready-to-use Ontario Disconnecting from Work Policy template that can be easily integrated into your employee policy handbook as is and/or with updates to add scenarios specific to your organization. We are pleased to make this available to any employer who requires such a policy for a flat fee. Click here to sign up to receive a copy.