Writing The Right-To-Disconnect Policy Right
Late last year, the government amended the Employment Standards Act, 2000 (the “ESA”) to require that employers with 25 or more employees (as of January 1 of a given year) have in place a written policy with respect to disconnecting from work. For 2022, this policy must be in place by June 2, 2022.[1]
Now that we can see June on the horizon (spring is coming!), many employers are turning their minds to actually creating the policy and have questions:
What is a “right to disconnect”?
Do I have to give employees the right to disconnect from work?
What has to be in the policy?
But really – how do I write this thing?
As it turns out, there are currently very few mandatory requirements for this policy, which I will review below. This means the policy can be tailored to the workplace and its goals. More importantly, this also means that employers can inadvertently create a greater right to disconnect than is necessary if they don’t write the right kind of right to disconnect policy.
What Is a “Right to Disconnect”?
It’s a misnomer, actually, when it comes to the newly-mandated policy.
The ESA requires that certain employers have a written policy on “disconnecting from work” – i.e. 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. However, the amendments to the ESA do not confer a freestanding “right to disconnect” outside of working hours, or require employers to have a policy that creates such a right.
Unfortunately, this “right to disconnect” misnomer is widespread (including in the government’s own Newsroom announcement of the changes). The focus on a “right to disconnect” is causing some confusion among employers and employees, who may interpret the new ESA requirement to be much more sweeping than it really is.
Do I Have to Give Employees the Right to Disconnect From Work?
The answer, apparently, is no – not beyond the rights they already had under other, pre-existing ESA provisions.[2]
The Ministry of Labour’s guidance has specified that the “disconnecting from work” policy doesn’t actually have to provide a right for the employee to disconnect from work, except as was already required in other ESA rules, such as the provisions addressing hours free from work, vacation, eating periods, and public holidays. These pre-existing provisions designate limited periods during which employees must be free from the performance of work. The statutorily-mandated “free” periods are not coextensive with all non-working hours; they are much more limited in quantity and scope.
Aside from compliance with those pre-existing ESA rules for statutorily-designated “free” times, the “disconnecting from work” policy need not go further. For example, the “hours free from work” provision of the ESA generally requires employers to give employees at least 11 consecutive hours free from the performance of work each day.[3] That leaves up to 13 hours per day in which an employee is not statutorily required to be free from the performance of work[4] – the new ESA mandate to have a “disconnecting from work” policy doesn’t change that.[5]
In short, employers shouldn’t think of these requirements as something new – they were enacted many years ago (when being physically away from work meant being free from work). The disconnecting-from-work policy is a roadmap for navigating existing ESA rights in a technology-driven, mobile work world.
What Has To Be In the Policy?
Currently, not much.
While the government may eventually create a Regulation prescribing additional content for the policy, as of now, the only statutory requirements are that the policy must:
Be about disconnecting from work;
Apply to all employees of the employer in Ontario (although it can apply differently to different employees);
Include the date the policy was prepared and the date any changes were made;
Be in place within the designated timeframe; and
Be provided in writing to each of the employees within 30 days.
It also goes without saying that the policy must comply with the ESA – it can’t opt out of recognizing existing statutory protections.
PH Tips for Employers a.k.a. How Do I Write This Thing?
Well, it depends what you’re trying to accomplish. The lack of mandatory content makes the policy challenging to conceptualize, but it also creates an opportunity to write a policy that is well-tailored to each workplace. Here are three basic approaches to consider:
1. Minimal Compliance
This approach aims to comply with the ESA requirement to have a policy, without conferring any new rights or making any aspirational statements promoting work/life balance. This type of policy could simply affirm that employees shall disconnect from work as and when required by the ESA. While such a policy could theoretically comply with the ESA (as long as it contains the mandatory elements listed above), practically-speaking, it doesn’t provide much useful information for employees or Human Resources to follow.
Alternatively, the policy could summarize ESA requirements re: hours free from the performance of work - but these requirements are complex and technical. If summarized wrong, the policy could fail to comply with the ESA. And either way, a full summary will result in a very long (and boring) policy.
A “minimal compliance” policy is possible, but if it’s going to have any utility, it has to thread the needle between simplicity and complexity. The exact language will need to be tailored to the specific workplace to mesh with other policies and reflect existing practices.
2. Flexible Approach
Alternatively, employers can create a policy that employees should not routinely work outside regular hours, with some flexibility. This approach allows for legitimate situations where an employee may need to work outside of normal working hours, including for business/operational needs or client needs, but sets the expectation that off-hours work is the exception and not the rule. This type of policy may include:
A general statement in favour of work/life balance;
Expectations for certain employees who have more frequent after-hours responsibilities (e.g. managers, IT, etc.);
Limitations on the ability to disconnect from work; and
Conventions for identifying items that require after-hours responses (e.g. using high-priority markers, stating deadlines, etc.), and an assumption that other tasks can wait until working hours.
In my view, this approach is more workable as a policy and more employee-friendly. Because it isn’t trying to restrict employees’ rights to the bare ESA minimums, it can stay away from the nitty-gritty of those rules. Instead, it can focus on promoting a desirable workplace culture.
3. The “Obligation to Disconnect” Approach
This approach goes beyond giving permission to disconnect, and creates an obligation to disconnect by limiting the types of communications that can be sent to/from employees after working hours or setting other, stricter parameters on when work may be performed.
This type of policy may require employees to:
Refrain from working outside of regular work hours;
Log out from their work accounts or turn off notifications at certain times;
Use the “delay send” feature for any email that will arrive after a specific time;
Activate “out-of-office” notifications outside of regular work hours; and
List their working hours in their e-mail signatures or voicemail greetings, and abide by them.
This approach could be considered for employers who want to be at the vanguard of the right-to-disconnect. It’s not going to work for everyone.
But note, this type of policy is more likely to create a “greater right or benefit” for employees that the Ministry of Labour would consider enforcing. For example if the policy prohibits work outside of an employee’s regular hours, it’s possible a salaried employee who works extra hours could seek additional compensation that they would not otherwise be entitled to. In that case, the employer could be subject to an ESA complaint and potentially an Order to Pay and/or a fine. Careful wording will be important.
* * *
These are early days in Ontario’s implementation of disconnecting from work policies. The approaches listed above are non-exhaustive, and we encourage employers to think carefully about how the policy could be tailored to suit their workplace. In particular, consider the business’ goals, operational requirements, recruitment strategies, and workforce when determining what type of policy will be the best fit. Also consider the wording carefully, to avoid inadvertently creating a policy that could lead to additional wages owing, and/or fines or penalties under the ESA.
And as always, we’re here to help.
[1] In subsequent years, it must be in place by March 1 of that year.
[2] My colleague, Jennifer Heath, wrote about the exisiting ESA rights and the movement towards a “right to disconnect” in May 2018.
[3] S. 18 of the ESA; however, there are nuances and exceptions to this general requirement.
[4] Subject to any other ESA restrictions on the performance of work.
[5] There may still be overtime, etc. requirements that apply. But again, these are not new.
