Right to disconnect: What are the legal requirements for HR?

Late last year, the eponymous Working for Workers Act was passed in a flurry of excitement – with employees seemingly gaining the right to end all workplace communications after their scheduled day is done. But it’s not quite that simple. There’s a misconception that the ‘right to disconnect’ is an inherent employee ‘right’. In fact, it’s just a requirement that employers with over 25 staff should have a policy in place – what each individual policy dictates is up for discussion. Now, as yet more changes come to light, HR leaders are left scratching their heads as to what this means for contract liabilities and employee expectations.

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“Employees are already protected under the Employment Standards Act,” Mike MacLellan, partner at CCPartners in Brampton, Ontario, told HRD. “There’s already laws about time free from work, daily and weekly maximum working hours that apply to most workers etc. The new rule doesn’t give any additional rights to employees to disconnect from work beyond what the Act already provides, however it should encourage employers to set certain expectations around work-life balance.”

However, this isn’t what the Act is requiring. The act only requires employers to put in writing what the disconnect from work rules are - they don't have to be anything greater than what's already in the act. It’s easy to see why Bill 27 has proved a point of contention and confusion for employers in Ontario. How far the disconnect rules will apply is entirely down to individual employers – it’s up to them what they decide how they decide to interpret it.

“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,” added 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.”

The devil is in the details. Employers need to act with caution when they’re drafting these policies. While it’s essentially up to them how far they take the rule, whatever they commit to paper must be upheld – or else.

“If they want to have a policy that says the bare minimum employment standards - that employees can disconnect from work after the statutory maximum number of daily or weekly work hours that apply to their employees, then that’s fine. At least they're setting that expectation. If an employer wants to go further and say that after 8pm we don't want anybody checking their emails, well, they better be prepared to stand behind that.”

The expectations of this rule also change from industry to seniority to paygrade. It all depends on what the company does and how they rely on their employees. For a large company with employees working on the floor, it may very well make sense for them to disconnect from off-shift work-related communications. However, for client-focused workers like lawyers, writers, engineers and accountants – it’s going to be incredibly difficult to enforce a ‘no contact’ rule.

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“The policy has to apply to all employees, but it does not have to set the same rules for all employees,” added MacLellan. “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.”