March 1 of each year is the deadline for two new policies in Ontario. Employers with 25 or more employees on January 1 of any year must have a disconnecting from work policy and an electronic monitoring policy in place by March 1 of that year.
Determining Your Employee Count
The first step for employers is to determine if you meet the employee threshold. You will need to determine whether you have 25 or more employees on January 1 of each year. The government has provided some guidance based on the Employment Standards Act, 2000 for determining who is an employee for the purposes of your employee count:
An “employee” includes,
- anyone who performs work or supplies services for wages (including officers of a corporation);
- some trainees;
- homeworkers;
- probationary employees;
- employees on definite term or specific task contracts of any length;
- employees who are on lay-off, so long as the employment relationship has not been terminated and/or severed;
- employees who are on a leave of absence;
- employees who are on strike or who are locked-out; and
- employees who are exempt from the application of all or part(s) of the Act.
Even though exempt employees may not be covered by the disconnecting from work or electronic monitoring provisions of the Act, they are included in the count.
If you have multiple locations, all employees employed at each location in Ontario must be included when determining whether the 25-employee threshold has been met. You need to look at your total number of Ontario employees.
Disconnecting From Work Policy
As of June 2, 2022, employers with 25 or more employees were required to have a disconnecting from work policy and employers with 25+ employees on January 1 of any year must:
- develop a “disconnecting from work” policy (in writing) by March 1 of that year;
- provide a copy of the policy to each current employee within 30 days of preparing or updating the policy;
- provide a copy of the policy to each new employee within 30 days of them becoming an employee.
You must also ensure that you have a policy for all employees. You can have different policies for different employees, but all employees must be covered by the policy.
What Does Disconnecting From Work Mean?
We continue to see references to a “right to disconnect” in the media and on some HR websites but this is misleading. The requirement is to have a disconnecting from work policy – the law does does not create a “right to disconnect”.
Disconnecting from work means not engaging in work-related communications, including emails, telephone calls, video calls or the sending or reviewing of other messages.
What Should the Disconnecting From Work Policy Include?
There is no specific information that has to be included in the disconnecting from work policy. Importantly, the law does not require that the policy give employees a right to disconnect from work and be free from the obligation to engage in work-related communication.
The law states that a disconnecting from work policy must contain “such information as may be prescribed”. As of right now, the government has not “prescribed” any information that must be included in the policy (when a law talks about something being “prescribed” that refers to the government filing a regulation. No regulation has been filed that sets out information that must be included in this policy).
It is important to note that this policy does not alter an employer’s other obligations under the Employment Standards Act, 2000, including obligations regarding days of rest, maximum hours of work, scheduling and overtime. An employer must still ensure that its employees receive the required time off under these provisions (note that some employees or occupations are either excluded from these requirements or there are special rules that apply to them).
Written Policy on Electronic Monitoring of Employees
Employers with 25+ employees on January 1 of any year must also have an electronic monitoring policy. If you meet this threshold, you must:
- have a written electronic monitoring of employees policy in place by March 1 of that year;
- provide a copy of the policy to each current employee within 30 days of preparing or updating the policy;
- provide a copy of the policy to each new employee within 30 days of them becoming an employee or the date the policy is prepared, whichever is later.
The policy must include the following information:
- Whether the employer electronically monitors employees, and if so:
- a description of when and how the employer may electronically monitor employees; and
- how that information can be used by the employer; and
- the dates the policy was prepared and updated.
You must have a policy for all employees, but you do not have to have the same policy for all employees. This means that you can have different policies for different employees, but the policy or policies must cover all employees.
What Should the Electronic Monitoring Policy Include?
Is the Employer Monitoring Employees Electronically?
First, the Electronic Monitoring Policy must state whether the employer electronically monitors employees. The Ontario Employee Standards Act does not define “electronic monitoring”, but the guidance provided by the Ontario government states that “electronic monitoring” includes all forms of employee monitoring that is done electronically.
The guidance also states that employee monitoring applies to monitoring that is done on both employer provided devices as well as other devices. Employee monitoring also applies to monitoring that happens both at the workplace and outside the workplace. The guidance suggests that the government is taking a broad view of “electronic monitoring” and employers should carefully consider whether any activities could be caught by this definition.
When and How is the Employer Monitoring Employees Electronically?
If you do electronically monitor employees, your policy must also state when and how you electronically monitor them. The specifics of this requirement will vary depending on the nature of the electronic monitoring that you employ. You will want to consider whether your electronic monitoring is continuous, whether it is only during certain periods of the workday or whether it is only during certain activities. You will also need to describe how the employee is electronically monitored.
How Can the Monitoring Information Be Used by the Employer?
The policy must tell the employee how the information can be used by the employer. The Act does not affect or limit an employer’s ability to use information obtained through electronic monitoring, but employers are required to tell employees how the information can be used. This means you must consider all of the possible ways that you might use the information, such as for performance evaluations, to ensure IT policies are being followed, to ensure that the employee is working during working hours, to obtain performance metrics etc.
Policy Distribution and Retention Periods
For both policies, you must provide a copy of the policy to each employee. For existing employees, you have to provide a copy of the policy within 30 days of preparing or updating the policy, and for new employees, you must provide them with copies of the policies within 30 days of them becoming an employee or the date the policy is prepared, whichever is later.
Every policy must be kept for 3 years after the policy ceases to be in effect.
For more information on these policies, see our earlier post.
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