Legislative Changes – Bill 27

The Working for Workers Act, 2021 and Right to Disconnect

Technology has been a game changer for the modern workplace. As we have seen from the COVID pandemic, many of us can work remotely, from any corner of the globe, with a phone, laptop, tablet and a good internet connection. But technology has also created a hyper-connected culture, where we are always available and ‘on the clock’. Gone are the days when you could disconnect from work at the end of a workday : the lines between work time and personal time are blurred and many of us are always ‘on.’

Enter right to disconnect policies and laws.

Bill 27, the Working for Workers Act, 2021

On December 2, 2021, Bill 27, the Working for Workers Act, 2021 received Royal Assent and became law in Ontario. Bill 27 amends a number of statutes, including the Employment Standards Act and includes a number of changes to support workers. One such change is the inclusion of ‘right to disconnect’ legislation in the Employment Standards Act in an effort to improve work-life balance for employees.

What is the Right to Disconnect?

The right to disconnect is the ability of a worker to disengage from work during non-working hours and essentially ignore work-related electronic communications such as e-mails, video-calls, or other messaging (e.g., text messages) received during this time. 

Right to disconnect employment policies and laws first emerged in Europe, with France being the first country (in 2016) to pass legislation limiting the intrusion of and the requirement to engage in work-related electronic communications during non-work hours.

Do Canadian Employees have the Right to Disconnect from Work?

In Canada, the federal government established a Right to Disconnect Advisory Committee in 2019 to consider changes to the Canada Labour Code. In June 2021, the committee released their final report detailing how right to disconnect laws could be adopted for federally regulated employees (e.g., those employees employed by the federal government employees, in the airline and train transportation industries, at banks and in the telecommunications industry). But these recommendations have not been made law.

Quebec considered the right to disconnect in the now defunct Bill 1097: Right-to-disconnect Act, which never became law.

With the passing and Royal Assent of Bill 27, Ontario becomes the first province and legal jurisdiction in Canada to pass right to disconnect legislation. As a result, at this time, only Ontario employees whose employment is regulated by the Employment Standards Act have the protections found in the Bill 27 right to disconnect legislation.

What’s Included in Ontario’s Right to Disconnect Law

The new law modifies the Employment Standards Act and imposes a requirement for Employers, who on January 1^stof each year employ 25 or more employees, to have a written policy with respect to disconnecting from work. This policy must be drafted before March 1 and the date the policy was both prepared and modified must be included in the policy.

The term “disconnecting from work” is defined to mean not engaging in work-related communications, including emails, telephone calls, video calls or the sending or reviewing of other messages, so as to be free from the performance of work.

Further, under the Employment Standards Act the term ’employee’ includes: 

• any person who performs work for or supplies services to an Employer for wages, including an officer of a corporation; and
• a person who receives training from an Employer, where the skill in which the person is being trained is a skill used by the employer’s other employees.

This means the law would apply to workplaces with 25 or more workers, regardless of the worker’s status (i.e. full-time, part-time, or casual). In addition, interns (whether or not they are paid) and possibly independent contractors would also be counted towards the 25-worker threshold to make the policy mandatory.

How will the Right to Disconnect Law Impact Me?

Unfortunately, the new right to disconnect law will have little impact on protecting an employee’s personal time from the intrusions of work. 

At its core, the right to disconnect law simply requires your Employer to have a workplace policy: the law does not create a standard that prohibits work-related communications after work hours. So, in reality, your Employer could have a right to disconnect policy as prescribed by the law and still engage in after work electronic communications with you, expecting you to respond to these communications. As the Bill 27 provisions in the Employment Standards Act read now, this conduct by an Employer would be totally legal.

Further, even if an Employer breached right to disconnect laws by not having a policy as required by the Employment Standards Act, there is no compensation or individual remedy for an employee who may be affected by the Employer’s breach.

Under the Employment Standards Act, an employee could complain to the Ministry of Labour about their Employer’s lack of a policy, which an Employment Standards Officer would then investigate. If after the investigation the Employment Standards Officer finds that the Employer is in breach of the right to disconnect provision (i.e. without a policy), the Officer can:

• order that the Employer cease contravening the provision;
• order what action Employer take in order to comply with the provision (such as drafting the policy); and 
• specify a date by which the Employer must comply.

It is worth mentioning that the Employment Standards Act does have standards and limits on the total hours an employee can work. But a number of jobs are exempt from the Act’s ‘Hours of Work’ standard and employees in these jobs are often the ones burdened with the requirement to be constantly plugged-in and engaged in after-work electronic communications.

Time will tell and it remains to be seen whether Employers with right to disconnect policies will face common law challenges (e.g., constructive dismissal claims and lawsuits) by employees for failure to comply with the policy. But for now and until then, the right to disconnect requirements under Bill 27 simply represent a step in the right direction of formally recognizing the workplace impacts of being constantly connected in today’s overly connected work.

Consult an Experienced Employment Lawyer

At Advocation, experienced lawyers practice in the fields of labor and employment law. They use their knowledge and skills to counsel and represent clients concerning workplace issues. To schedule your consultation, contact Advocation today.