'Right to disconnect': How employers can prepare for policy deadline

Employment lawyer reveals how to update your plans before the June 2022 cut-off

'Right to disconnect': How employers can prepare for policy deadline

Late last year, Bill 27, or the Working for Workers Act, was passed by the Ontario Legislature – allowing employees in the province the ‘right to disconnect’. The move will stop employees from engaging in work-related communications, including emails, telephone calls, after their scheduled working hours are done. While the move has been praised by wellbeing advocates, it also presents a fair few challenges for Ontario employers – especially as the information surrounding the Bill is yet to be finalized.

David Fanjoy, associate at employment lawyers McMillan, spoke to HRD on Bill 27 and revealed what HR leaders should be doing now to avoid legal issues in the coming months.

“The Bill requires employers to develop a policy that allows staff to disconnect from work,” explained Fanjoy. “However, as of yet, we don’t know what needs to be in that policy, who it will apply to, or how it’ll be enforced. What employers need to know is that by June 2, 2022, if they have 25 or more employees, they need to develop some sort of written policy explaining how employees will disconnect from work.”

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The Bill, as Fanjoy pointed out, is still to be fleshed out. For now, all we know is that employers should be looking at enhancing their current policies and thinking about the how this will fit in to their organization.

“I believe the idea behind the Bill is to put the onus on the employer and management to discourage after hours communication,” Fanjoy told HRD. “That’s to ensure that their employees are getting a good amount of time free from emails. So, for example, from 5pm onwards, their phones shouldn’t be lighting up and they shouldn’t be being asked to join calls.”

But while the Bill is a step in the right direction for enhancing employee wellbeing and work-life balance, such a broad stroked approach leaves a lot open to interpretation. And just how enforceable is a Bill which effectively makes it illegal to contact staff after their day is done?

“By including the ‘right to disconnect’ in the employment standards act it creates a bit more of an enforcement mechanism,” added Fanjoy. “But, again, we’re still waiting on the details. The only hard requirement right now is that, come June, employers have a written policy – which is a pretty easy obligation to meet. There’s nothing in the legislation now about the consequences of not following the rules. We’re waiting to hear what will happen once an employer has those policies in place, how they’ll be applied and enforced.”

For HR leaders looking to get ahead of the game, it’s time to start some legal future-planning. It’s always best to get the advice of an employment lawyer before making any major policy updates however, as Fanjoy told HRD, you can begin by looking at your current contracts.

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“I think setting up what the hours of work are and when the workday ends – even just having those policies will create a culture shift in a lot of workplaces and will get employers and HR thinking about communicating after hours etiquette,” he explained. “Look at developing those policies and trying to figure out what the hours will be and who they will apply to. It’s also important to consider those necessary times when afterhours work is required. Will there be compensation for employees? Will they have those hours deducted from the next working day? Employers should be thinking about tailoring the Bill to their workplace – both in terms of their business and their employees.”

HRD recently spoke with leading employment lawyer Michael Horvat, partner at Aird & Berlis, who gave his advice on what the other aspects of Bill 27 mean for employers – and how to plan ahead when it comes to policy upheavals.

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