By: Mercy Liu

Emerging on the back of a growing workers’ movement is the proposed human “right to disconnect”. But does Ontario’s new right-to-disconnect legislation really mean that your boss can’t bug you outside of work anymore?

A New Human Right

For many workers, the ability to work from home during the COVID-19 Pandemic was both a blessing and a curse. On the one hand, remote workers were able to shorten or even eliminate commuting times. On the other hand, these same workers began facing a blurred work-life balance. Kitchens turned into offices and bedrooms into breakout rooms almost overnight. It became much more difficult to step away from electronic work devices after traditional working hours. Modern technology designed to make life easier became akin to an “electronic leash”.[1] This conflicted with several pre-existing human rights, including the right to rest and leisure under the Universal Declaration of Human Rights. From a human capital perspective, this also undesirably increased the risk of burnout and overwork.[2]

In fact, these issues predate the Pandemic. However, few jurisdictions tried to use the law to address them. France was the first to discourage excessive work-life interference in workers through legislation. This right to disconnect was codified into French law in 2016.[3] Since then, some other countries like Italy and Slovakia have adopted similar laws. In Canada, federal policies are in the works. For now, Ontario is poised to become the first province to codify the right to disconnect in Canada.

Working for Workers

Ontario’s new Working for Workers Act amends several labour statutes. Under the Employment Standards Act, employers with more than 25 employees must now create written disconnect-from-work policies.[4] Existing employees must receive a written copy within 30 days of the policy’s creation or revision. New employees must receive a written copy within 30 days of being hired. These policies extend to work-related communications like emails, phone calls, video calls, and sending or reviewing messages. The right-to-disconnect provision takes effect on June 2, 2022. Starting then, employers must ensure that their right-to-disconnect policy is in place by March 1st of each year.

Not Quite Anchored to Reality

While the Act’s restrictions sound like a good idea in theory, in practice they are limited in several ways. First of all, the restrictions only apply to certain scenarios. Under the Act, employers must tell employees when working hours are. However, they can still create employment relationships requiring on-call. Second, the existing provisions under the Act do not specify which occupation classes are excluded from its scope. The occupation classes most likely to be exempt include agriculture, construction, healthcare, manufacturing, hospitality, law, and transportation. These occupation classes span many workers who may not be able to reap the benefits of right-to-disconnect legislation. Third, the legislation may be difficult to enforce and lacks guidelines for penalties. An employer who emails an employee after working hours faces unclear ramifications under the existing guidelines. If fined, reprimanded, or disciplined, they may pursue legal challenges. Furthermore, if work-related communications are never reported on, these restrictions lose effectiveness. Further guidelines on these issues will need to be addressed in the future. For now, Ontario’s right-to-disconnect legislation remains incomplete.

About MyOpenCourt

Ontario’s new legislation on the right to disconnect still provides some room for confusion. Further changes are likely necessary for them to be workable. Until then, other areas of labour law continue to provide guidance on other workers’ issues.

The Conflict Analytics Lab provides a host of worker-related tools. If you want to determine whether you’re an employee or independent contract, you can get started with our Employee or Contractor Tool. If you’ve recently experienced a layoff or termination, you can use our Layoff or Termination Compensation Tool to see if you may be entitled to compensation. Finally, if you’ve experienced a wage cut, our Wage Cut Tool can help identify if you’re entitled to compensation for constructive dismissal.

[1] Catherine Skrzypinski, Ontario Government Grants Workers Right to Disconnect (December 2021), online: Society for Human Resource Management https://www.shrm.org/resourcesandtools/hr-topics/global-hr/pages/ontario-grants-right-to-disconnect.aspx.

[2] Pandemic Puts “Right to Disconnect” in Spotlight as Provinces Inch Toward Policies (December 2021), online: CBC News https://www.cbc.ca/news/business/right-to-disconnect-policies-1.6298845.

[3] The Canadian Press, How Employers Are Focusing on Right-To-Disconnect Movement in 2022 (January 2022), online: Benefits Canada https://www.benefitscanada.com/human-resources/hr-law/how-employers-are-focusing-on-right-to-disconnect-movement-in-2022/.

[4] Working for Workers Act, 2021, SO 2021, c 35, ss 21.1.1-21.1.2(3).