In the wake of the COVID-19 pandemic, there have been many discussions in the workplace, in the media, and on social media about burnout, constant connectivity, and extended workdays. while working from home. The social tide is changing, with many employees seeking to protect their “off hours” in order to maintain a work-life balance. In response to this, on October 25, 2021, the Ontario government passed Bill 27, the Labor law for workers2021. The bill contained an amendment to the Employment Standards Act 2000 (the “ESA”), requiring Ontario employers to implement a “Disconnected from Work Policy” by June 2, 2022. The ESA defines “Disconnected from Work” as “not engaging in work-related communications, including emails, calls, video calls, or sending or reviewing other messages, in order to be free to perform the job.
Currently, Ontario is the only province in Canada to have introduced this requirement.
The question that concerns every corporate lawyer, human resources professional and operations professional is: what East the right to disconnect? Are employers really prohibited from contacting their employees for a certain period of time during the day? The short answer to this question is no – but really, that’s up to the employer to decide.
Related to this topic, Dentons Canada’s Employment and Labor Group has developed a model Ontario Work Disconnect Policy out of the box.
The basic requirements of an Ontario “disconnected from work” policy are:
- Employers with 25 or more employees in Ontario as of January 1st of any year require this policy. The 25 employee requirement includes both part-time and casual employees.
- When an employer has multiple locations, all employees in each location count towards the 25 employee threshold.
- All employees must receive a copy of this policy within 30 days of the policy being prepared or updated.
- Employers must retain a copy of this policy for three years after the policy is no longer in effect.
What is the “right” to disconnect?
Currently, the only substantive requirement employers must meet is simply to have a policy that addresses disconnection from work. The ESA states that a work disconnection policy must contain the prescribed information, but there are currently no regulations explaining what this prescribed information is. So at the end of the day, there really isn’t a “right” to disconnect in Ontario, only a requirement for employers to have a “disconnect from work” policy in place by June 2.n/a2022. Employers are free to determine the actual content of the policy.
Although Ontario is the first jurisdiction in Canada to introduce the requirement for a “disconnected from work” policy, it is not the first jurisdiction in the world to do so. Spain, Italy and Scotland have all addressed the right to disconnect, whether through legislation or proposed policy. Below, this overview examines what each international jurisdiction has implemented and gives an idea of what could be in the future for Ontario.
“Digital disconnection” in Spain
Workplaces in Spain are required to have a ‘digital disconnect’ policy. The “Digital Disconnect” policy applies both to employees working on company premises and to employees working remotely. As in Ontario, the content of a Spanish “digital disconnection” policy is not explicitly defined. However, in Spain, a policy of “digital disconnection” must address 1) the use of IT tools outside working hours, and 2) the information obtained by the employer through the use of geolocation systems and employee privacy interests.
In Spain, violations by employers of a “digital disconnection” policy could lead to:
- Administrative fines up to EUR 225,000;
- Complaints of moral harassment;
- Accidents outside the workplace are considered “work accidents”; and
- The employees are seeking severance pay and damages.
The right to disconnect in Italy for “smart workers”
In Italy, the “right to disconnect” refers to the employee’s right to be able to disconnect from their work and refrain from engaging in work-related electronic communications, such as emails and emails. other messages, outside working hours and on public holidays. The purpose of this right is to protect the health and safety of employees and to ensure fair working conditions. As in Ontario and Spain, the requirement for a “right to disconnect” is general in nature, without much detail. However, some employers in Italy choose to restrict work communications between 8:00 a.m. and 8:00 p.m.
Italy has two remote working methods: “telework” and “smart work”. Teleworking is defined as “work using information technology within the framework of an employment contract or relationship, in which the work, which could also be carried out on company premises, is regularly carried out outside the company’s premises”. Smart working is a flexible arrangement in which work takes place only partially off an organization’s premises, and employees have flexibility with respect to working hours, as long as they stick to the hours. minimum and maximum working hours provided for by law. It is important to note that only employees who perform “smart work” have the “right to disconnect”, unlike employees who perform “telework”.
Unlike Ontario and Spain, the “right to disconnect” in Italy must be included in individual employment contracts, not in employment policies.
In Italy, unlike Spain, there are no enforcement mechanisms or administrative fines to ensure that employers respect the right to disconnect.
Disconnect talks in Scotland
In Scotland, the Scottish government has no jurisdiction over employment law. These matters are regulated by the UK government. However, in December 2021 the Scottish Government announced its Public Sector Remuneration Policy for 2022-23. In this policy, the Scottish Government included “a requirement for all [public sector] employers to have constructive discussions with staff representatives on the right to disconnect for all staff, discouraging an “always connected” culture.
The Scottish Government will publish a technical document in the spring, outlining what these discussions could look like.
The Scottish Government is also considering piloting a four-day working week and is encouraging employers to maintain a hybrid workplace.