Author: Gayle Wadden
As of today, October 11, 2022, employers in Ontario with 25 or more employees must have an electronic monitoring policy. This new requirement arises from recent changes to the Ontario Employment Standards Act.
Compliance Works is still seeing a lot of confusion from employers about how to comply with the electronic monitoring policy (as well as the disconnecting from work policy). Compliance with constantly changing employment laws in Canada can be challenging and time consuming. So, Compliance Works has published this refresher for our subscribers and readers who are responsible for HR compliance in Ontario, Canada.
Written Policy on Electronic Monitoring of Employees
What is Employee Electronic Monitoring?
““Electronic monitoring” includes all forms of employee and assignment employee monitoring that is done electronically.” While not meant to be an exhaustive list, some types of electronic monitoring an employer might use include: network activity tracking, email monitoring, phone and voicemail monitoring, time tracking and file tracking, internet and app usage, video surveillance, keycards, GPS / location tracking and more.
It’s About Transparency
The Ontario law requiring an electronic monitoring policy is about transparency. The law does not prohibit electronic monitoring, but it does require employers to tell their employees if they are being electronically monitored. If employees are being electronically monitored, it also requires the employer to provide employees with information regarding the scope of the monitoring and the purposes for which the information can be used.
Electronic Monitoring – Written Policy Requirement in Ontario
As of October 11, 2022, employers with 25+ employees on January 1 of any year must have an electronic monitoring policy. If you meet this threshold, you must:
- have an electronic monitoring of employees policy (written) 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.
Does Your Organization Meet the Threshold?
When determining whether you meet the threshold of 25 or more employees, you need to include all employees across all locations. For example, if you have 3 workplaces each with 10 employees, you meet the threshold and are required to have a policy.
The relevant date for determining if you meet the threshold is January 1. If you had 25 or more employees on January 1, 2022, then you must have a policy by October 11, 2022. For subsequent years, you need to determine your number of employees as of January 1 and if you reach the threshold, you will then need to have a policy in place by March 1 of that year (for example, if you had less than 25 employees on January 1, 2022 you do not need to have a policy by October 11, 2022. But, if your employee count increases and on January 1, 2023 you have 25 or more employees, you then have until March 1, 2023 to develop an electronic monitoring policy).
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. For example, under this broad definition, general video surveillance of a workplace could be viewed as electronic monitoring of employees.
When and How is the Employer Monitoring Employees Electronically?
Second, if you do electronically monitor employees, your policy must also state when and how you electronically monitor employees. 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. For example, do you employ software? Or GPS? Or video surveillance?
How Can the Monitoring Information Be Used by the Employer?
Third, the policy must tell the employee how the information can be used by the employer. The Act specifically states that nothing in this section requiring an electronic monitoring policy affects or limits an employer’s ability to use information obtained through electronic monitoring of its employees, but you 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, or to obtain performance metrics.
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.
Written Policy on Disconnecting From Work
As of June 2, 2022, employers with 25 or more employees are required to have a disconnecting from work policy. The law does not provide much guidance on this policy. It provides that 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.
What Does Disconnecting From Work Mean?
Disconnecting from work means not engaging in work-related communications, including emails, telephone calls, video calls or the sending or reviewing of other messages.
Does Your Organization Meet the Threshold?
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 Employment Standards Act, 2000 includes a definition of employee and you will need to consider when determining who to include in your count. If you meet the threshold, 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 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).
The Ontario government has provided some guidance on this policy that may be helpful.
Policy Distribution and Retention Periods
As noted above, for both policies, you have to actually 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.
You are also required to keep copies of the policies even after they cease to have effect. If an employer is required to have the above policies, they must retain copies of the polices for 3 years after the policy ceases to be in effect. This means that if you update or change these policies, you must keep a copy of each changed/updated policy for 3 years.
How Compliance Works Helps HR Professionals
Compliance with constantly changing employment laws and recent updates to the Employment Standards Act in Ontario can be challenging and time consuming. Compliance Works helps HR professionals understand with more confidence the requirements to make the work of drafting employee policies easier.
Contact us to Request a Demo , subscribe to Compliance Works publications, or email us at info@complianceworks.ca to learn how a paid subscription to Compliance Works can help your HR team succeed.
