Reviewing overtime and hours-of-work policies also vital, says KPMG labour law expert
Ontario has passed a law that will give employees the right to disconnect — but what exactly does this all mean for employers?
Lisa Cabel, national leader employment labour law at KPMG Law in Toronto, discussed the key issues oganizations should be aware of to comply with the Working for Workers Act, 2021, which goes into effect on Jan. 1.
Q: What does the law mandate?
A: “The bill is requiring employers to have a written policy regarding disconnecting from work, and when we talk about disconnecting from work, it means that we’re defining it as not engaging in work-related communications, either after certain hours or within certain times of the day. We’re not quite sure yet what that policy will look like because we’re still waiting for the regulations that are going to specify what’s required in the policy.
“In terms of which companies are required to have the policy, it’s where you have more than 25 employees. That’s important to note that there’s a threshold so not every employer in Ontario.
“We would assume that it’s full-time, part-time, casual employees but we don’t have guidance on that either at this point.
“The deadlines for having the policy in place is June 2, 2022, so we have a bit of a window right now. During that time, we’re expecting further guidance on the regulations and what’s going into the policy, and then by that June 2 date, employers are expected to have a policy in place.”
Q: What are the penalties for employers who don’t comply?
A: “At this point, it doesn’t explicitly state what penalties would be levied in terms of not having the policy, all it does is say that you have to have the policy.
“However, in terms of employment standards, there are penalties generally outlined that essentially allow the regulations to prescribe penalties. We’re a bit of a ‘to be determined’ on that as well, in that they will likely have something in place with these regulations… to truly define what this right to disconnect means.”
Q: What are the main challenges in implementing the new rules?
A: “The challenge is, what is this right to disconnect mean? Right now, it’s difficult to draft our policies without that guidance but bigger than that, especially where many employers are moving into this remote or hybrid, there’s going to be really an obligation to think about what are we talking in terms of normal working hours for employees work-related communication?
“The challenge is really understanding and it will be varied for your employees, depending on if the individual is someone who’s in the office full-time or perhaps remote, full-time or hybrid. There’s going to need to be different approaches, depending on your categories of employees, and then monitoring it, ensuring that people are disconnecting or monitoring that managers are complying with the obligations, and time and costs associated with training individuals properly on what the policy means and how to actually implement it.
“It’s one thing to say, ‘We’re going to refrain from — unless there’s perhaps urgent circumstances — contacting employees after certain hours or certain times of the day’ but then monitoring that and actually implementing it and ensuring that people are following that guidance.”
Q: What should be included in the policy?
A: “This is new to Canada in the sense that this is the first law we’ve seen come into effect but we can look to other countries that have similar laws in place.
“We’ve been able to, for example, talk with our colleagues in Paris, because France has had this law in place for some time so leaning on the experience from other countries, I can give a shortlist of what we would expect to see in the policy.
“As a starting point, you have to define the scope of disconnecting from work and work-related communication: What does that mean? Emails, text messages, phone calls, virtual calls: we need to really have these terms clearly defined and then outline the expectations of the policy.
“Who does this apply to and who’s responsible for monitoring it? How are we going to continue to ensure that if there’s a complaint or if there’s a violation of the policy, what’s the process for bringing that forward? Also, how is this going to be monitored and enforced?
“Typically, HR owns the policy or there’s some sort of complaint process that needs to be built into it. For example, harassment policies are in place in Ontario, where there’s defined requirements to have an investigation or a review process. If there’s a complaint process built into the policy, is that the same process, whether or not it piggybacks with another process already in place? O are you developing a new one? [That] would need to be considered.
“You need to indicate whether you’re going to be providing training to employees and management in your policy and because this is fairly new, we’re giving advice to our clients to create it for a fixed period of time and allow for there to be a review process built in.”
Q: Can any employees opt out of the regulation?
A: “At this point, no; however, when we look at other jurisdictions, there are typically exceptions included in the policies, whether it be by virtue of a certain category of employee or perhaps in certain circumstances. An exception to the right to disconnect that might be an urgent situation for work and similarly, perhaps it could be that an employee says, ‘I’m OK, if you contact me in these hours on this day.’
“Typically though, we always have to go back to the basic principle that employers are not allowed to contract out of the Employment Standards Act. There will be exceptions to the policy but it’s unlikely an employee would be able to say, ‘I’m OK with you contacting me after hours.’
“We always have to consider these are complaint-driven processes so if the employee doesn’t complain, then it’s probably unlikely to be brought forward, hence that monitoring piece will be important.”
Q: What should HR be doing to get ready for this?
A: “HR would need to likely consider training around this policy and the concept of disconnecting from work. The need for additional training specifically for managers and best practices [and] wanting to bring all the employees on it but specifically around managers and supervisors on ensuring compliance.
“This is really connected to overtime and hours-of-work policies, so reviewing those policies to ensure how they interact with the concept of the right to disconnect will be important.
“A review of your employment contracts because there may be terms used in the contracts like, for example, ‘regular working hours,’ that have certain definitions within your contracts. It’s prudent to review those and determine if any adjustments should be made incorporating that right to disconnect.
“It’s important for employers to consider how are they going to monitor this and whether there’s any system changes that need to be made. So, for example, requiring employees to log on or tracking emails; there may not be the technology in place to do that at this point.”