Ontario’s “Right to Disconnect” Act came into force on June 2, forcing companies to develop policies that allow employees to disconnect outside of normal business hours, but what does that mean in practice?
The new law, the first of its kind in Canada, has big gaps and ultimately doesn’t add much to existing laws, according to two labor lawyers who spoke to CTVNews.ca.
“It’s very bright and looks very impressive, but once you look at it substantially, there’s no skin on the bones,” said Jared Lecker, a partner at Lecker & Associates focused on labor law and human rights at the site. work. a telephone interview.
Here’s what you need to know about what the law says, how it was, what the key gaps are, who is excluded, and more.
WHAT DOES THE LAW SAY?
The new law is part of the Labor Act for Workers. Requires employers to have a “written policy for all employees regarding disconnection from employment” and requires that all employees receive a copy within 30 days of its creation or if any changes are made to a existing policy.
The law defines “disconnect from work” as “not engaging in work-related communications, including e-mail, phone calls, video calls, or sending or reviewing other messages, in order to be free from conducting work.” the work”.
Legal experts, however, say the way Ontario law is drafted is very bureaucratic and does not cover significant new ground.
“It only creates an obligation for an employer to have a policy, and in my view, most employers will not create a substantive right to disconnect,” said Daniel Lublin, a founding partner of Whitten & Lublin, a law firm. lawyers specializing in employment and occupation. labor law, he said in a telephone interview.
“I have a very dark vision of it. It’s just another procedural rigamarola.”
Lublin said it allows companies to draft a policy in a way that maintains some ambiguity or gray area, for good reason.
“How can a business be effectively managed if there is an emergency and everyone has the right to avoid responding to out-of-hours emails? I certainly couldn’t run my business that way and I think a lot of business owners think same “.
Lecker said questions and details about what can be sent or communicated out of hours, what to expect until later, which employees should respond immediately and who don’t, are left to companies to find out. .
“All it says is that there should be this written policy for all employees. So as long as they have a” policy “without quotes regarding what it means to disconnect from work … [details] they are left to individual companies, ”Lecker said.
Even lawyers are unclear what happens if an employee refuses to respond to work communication outside of hours because the law is intentionally left vague, he said, adding that it may be up to the courts to decide.
WHO IS AND IS NOT INCLUDED IN THE LAW?
The law applies to all Ontario employers who have 25 or more employees as of the first day of each calendar year. However, it excludes 39 per cent of Ontario’s private sector workers because the law does not apply to federally regulated companies. These industries include air and ground transportation and services, all banks, most federal Crown corporations, port services, broadcasting, telecommunications, and any business that is vital to the operation of these businesses and services.
HOW DID THE LAW COME OUT?
The Labor Act for Workers was proposed by the provincial government in 2021 in response to concerns about exhaustion, especially during the pandemic when working from home meant that the lines between work and home became even more blurred. .
In 2017, France became the first country to adopt such a law, which gave workers the right not to respond to work-related communications outside working hours and banned companies from penalizing employees. who do not respond. Since then, other countries such as Italy, Spain and Ireland have followed suit. In Germany, where it is not enshrined in law, companies such as Volkswagen and Henkel, however, have implemented policies with similar goals.
WHAT ARE SOME MAIN MILKS?
A key gap in Lublin’s view is the line that states: “If the employer’s policy on disconnection does not create a greater right or benefit, the policy is not applicable under ESA. [Employment Standards Act]. ”
“What they are saying is that there is no legal right to disconnect … The Ministry of Labor will do nothing unless the employer creates more than it needs and refuses to follow suit,” Lublin said.
“Which employer would do that?”
The law is so vague and broad, Lecker said, that a company could, in theory, enforce it even if its job disconnection policy only applies from 5:59 a.m. to 6:01 p.m.
“As long as they don’t get in touch with you between those two minutes, they’ve been complied with,” he said of the extreme example, adding that it’s a law that essentially favors the employer.
WHAT HAPPENS IF AN EMPLOYER IS CONTACTED OUTSIDE HOURS?
A major concern for many employees is the consequences of rejecting job applications after normal hours. Could they be fired? Would it jeopardize your chances of promotion?
Lecker said those concerns are legitimate. While there are sections in the law that aim to protect employees from retaliation or be disciplined, they may still be overlooked for promotion or promotion, or fired for another reason, he said.
“The risk is still that they may decide that you are more likely to be restructured than your colleague who says,‘ Please feel free to contact me whenever you want, ’” Lecker said.
“If someone came to me and told me they were contacted outside of off-hours, I don’t even know what we would do to try to remedy the situation.”
CAN I GET TO THE PLACE TIME?
Some clients have asked lawyers if they can get “replacement” time, for example, where they can accumulate hours where they don’t need to be connected. As the law stands, the answer is no; there is no system to gain hours where you don’t have to be connected, according to Lecker.
WILL THE LAW BE EXPANDED FURTHER TO GIVE MORE GUIDANCE?
At the moment, there are no indications that the law will be amended.
AND WORKERS REGULATE FEDERALLY?
While there are no equivalent “disconnection” laws for federally regulated industries, there are other federal provisions for various industries that protect workers’ boundaries in other ways, Lublin and Lecker said. .
There are guidelines on how many hours they can work, vacation time, vacation time, and vacation pay. Truckers, for example, must have some rest time between shifts for safety reasons.
“It’s not exactly the same, but they have similar rights to disconnect, so to speak, they have a little more teeth as they are, but not that broad right to have a work-life balance,” he said. Lecker. .
DO OTHER PROVINCES CONSIDER THIS LAW?
While the pandemic and Ontario have put the “right to disconnect” on the radar of other parts of the country, no other province is even close to putting anything in the law, and most seem to take a wait-and-see approach. and see, lawyers. dit.
Employment regulations are quite comparable across different jurisdictions in Canada, Lublin said.
“They all seem to be copying in some way and Ontario seems to be leading the load. So you might see another province get into this with slight variations.”
HOW CAN THEY MAKE COMPANIES WORK BETTER?
In Lublin’s view, the law is a political game designed to generate “gap-like” votes. But he noted that some companies can take this new law seriously and do the right thing by creating a clear policy and explicit guidelines.
“Some companies will adopt it to attract and retain talent,” he said.
“They’re going to create something they didn’t really need to create, but in doing so, they’re giving it a go … Here’s a chance if we think positively for a second: how companies attract and retain talent and position themselves as a job which is super flexible. “
WHAT HAVE SOME COMPANIES SAID?
CTVNews.ca contacted several companies for a sample of how they are approaching the new policy. Here is what some of them said.
IBM Canada said in an email that its new policy was in line with the law and encouraged employees to prioritize work-life balance. “The new policy also encourages IBM users to use many of the programs and policies we already have in place as part of our efforts to maintain a supportive and balanced culture (ie, wellness programs, flexible work schedules). , holidays, etc.) “. The company said it was also looking for ways to “disconnect” that would strengthen the balance and well-being between work and family life.
Enbridge said in an email that it has guidelines on disconnecting from the job while managing its operational and business requirements. The energy company said that while the policy “generally means not engaging in work-related activities and communications, including emails, phone calls, video calls, or sending or reviewing other messages when they are away from work. during regular business hours “, how and when an employee can be disconnected from work will depend on factors such as their role, business needs and other considerations such as applicable employment and collective bargaining agreements. The company noted that it operates critical energy infrastructure assets that require continuous operation 24 hours a day and said its work disconnection policy is “designed to work with Ontario employment regulations and .. .