Employers, unions disagree on right-to-disconnect approach

In November 2021, Ontario passed legislation around the “right to disconnect” and work-life balance, a first for Canada.

However, a right-to-disconnect policy would be tricky to put in place and police, according to one lawyer, in talking to Canadian HR Reporter.

Disagreements

In the federal government’s report, employers say that the government should not adopt a legislative or regulatory requirement around the right to disconnect, but encourage parties to develop policies to ensure proper work-life balance for employees.

They feel that there are ample provisions in the Canada Labour Code (and its Regulations) related to hours of work and appropriate compensation for work undertaken.

On the other hand, unions say there should a robust, legislative requirement for workplaces to establish an enforceable right to disconnect policy. They feel that a totally voluntary approach will not work, and workers could be penalized for disconnecting when exercising their right to rest periods.

Also, while unions and non-governmental organizations (NGOs) say that a statutory right to disconnect must be accompanied by a legislative definition of “deemed work”, employers disagree, saying, “Deemed work is a separate issue from right to disconnect and it should be addressed through its own consultative process.”

Employers also say that any consideration of the right to disconnect should ensure that employers maintain flexibility, within the existing hours of work regime in the Code. And the timing of the implementation of any new measure should not impose new administrative burdens on employers struggling through the pandemic.

Commonalities

However, there were several points where the groups representing employees and employers agreed:

• Employees should be paid for work performed.
• Establishing a positive work-life balance is a key goal of both employers and workers.
• There is a need for flexibility for both workers and employers.
• There is a need to protect health and safety, and there are some situations where communication with employees is critical.
• There is a need to recognize existing arrangements, such as collective bargaining relationships.
• Absolute limits (such as shutting down email servers or network access) may not be realistic in some situations.
• There is a need to recognize the varied nature of the federal jurisdiction.
• There is a need for clarity in whatever is implemented.
• There is a need to protect the privacy and security of workers.

However, Canadian HR Reporter spoke with legal experts who questioned the reasoning behind Ontario's right-to-disconnect proposal, citing employee preferences for flexibility, and the challenges of enforcement.

Overall, the advisory committee is looking into a right-to-disconnect requirement for workplace-based policies to:

• provide employees with boundaries on the use of workplace communications devices outside of standard working hours
• provide clarity on what is working time and what is not, including considerations for waiting for an employer to assign work (on-call/standby) and checking communications
• provide details on the workplace procedure for emergency situations where workplace communication devices may need to be used outside of these hours
• outline situations where employees (or groups of employees) are expected to regularly be available through workplace communications devices due to operational requirements