Ontario's 'right to disconnect': everything HR needs to know

It's a simple rule in theory, but much more difficult to enforce in practice

Ontario's 'right to disconnect': everything HR needs to know

As of June 2nd 2022, employers across Canada were forced to grapple with the somewhat confusing ‘right to disconnect’ law. Namely, all employers with over 25 workers on their books need to have a policy delineating how and when employees can and cannot be contacted – with leaders being urged not to reach out to staff after their working day is done.

“According to the ESA, the right-to-disconnect means 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,” Patrick Stepanian, legal manage at Peninsula, told HRD.

Who does the law apply to?

The rule applies to anyone who identifies as an employee – that includes; trainees, officers of a corporation, remote workers, hybrid employees, employees on strike and those who’ve been laid off but not terminated.

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Sounds simple, right? Well, not really. The issue many employers are having with the new law lies in its vagueness. The blanket ‘one size fits all’ approach to disconnecting simply doesn’t apply to a lot of industries, roles or positions in the company.

“The policy has to apply to all employees, but it does not have to set the same rules for all employees,” added Mike MacLellan, partner at CCPartners in Brampton, Ontario. “A customer service representative at a retail store and the manager would be bound to the same policy. The manager, however, will likely have different responsibilities where disconnecting from work is not possible or practical.”

So, what does the policy have to include?

“There are two main requirements employers must include: the date the policy was prepared and the date any changes were made,” Stepanian continued. “The ESA does not specify the information employers must include as it is the employer who determines the content of the policy itself. An example of what an employer can include in the policy can be expectations they have for employees to respond to any work-related emails or calls after work hours.”

What’s actually changing?

The confusion centres around the lack of perceived real change. The law only requires employers to put in writing what the actual disconnect rules are – and they really don’t have to be anything bigger than what’s in the Working for Workers Act.

“The easiest route for employers to take would be to say that employees don't have to engage in work related communications during their daily meal periods, or beyond their daily and weekly maximum hours of work allowed by the Act,” said MacLellan. “That’s the bare minimum. But realistically, employers will tailor the policies to their own individual business needs and to reflect the type of work environment they want to foster. For instance, I expect employers who are trying to espouse the good values of work life balance saying that after a certain time of the day, employees don't need to check their emails, if that is practical. Or, they may say that employees do need to check emails, but don’t need to respond to anything that isn't urgent.”

How should HR roll out the policy?

As with all new initiatives, it’s up to HR to inform employees of any impending changes. With the ‘right to disconnect’ law, HR should be encouraging employees to take charge themselves. Turn off your phones, mute your emails, place an out of office on your laptops – make it clear that you don’t want to be disturbed after your working day is done. A lot of this rule depends on the good faith of an employer – remember, there’s no detailed guidelines of what the policy should include – simply that there should be a policy. Therefore, it’s up to employers what they put in place. If you don’t feel as if it’s possible to have a total right to disconnect, then this needs to be reflected in your statement.

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As of yet, we’ve not seen any repercussions of violations of this law – however, it’s likely that if an employee was punished for not responding to an email outside of their working hours then they could take this complaint to the Ministry of Labour. For HR, it’s about being clear and specific in what your policy dictates – and ensuring that all employees are aware of their responsibilities to it.


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