Electronic monitoring in Ontario: What employees need to know

Ontario’s Ministry of Labour, Training and Skills Development released new guidance in 2022 that requires employers with 25 workers or more to have a written policy that clearly outlines whether or not the company electronically monitors staff.

The update comes after Bill 88 (Working for Workers Act, 2022) made changes to the Employment Standards Act, 2000 (ESA) on Apr. 11, 2022. Among the changes was the requirement for companies in the province to inform employees if they are being monitored electronically.

When do Ontario employers need to have electronic monitoring policy in place?

Under the ESA, if an employer had 25 workers or more in Ontario on Jan. 1, 2022, they must now have a written electronic monitoring policy in place for staff. The deadline to implement the policy was Oct. 11, 2022. Employers have until Nov. 10 to share the information with their employees.

Companies with 25 employees or more on Jan. 1 2023 must have their written electronic monitoring policy in place before Mar. 1, 2022.

Employers must provide a copy of the written electronic monitoring policy to all employees as well as staff who are assigned to perform work for the company within the specified timeframes.

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What needs to be included in the written policy?

If your employer does monitor staff electronically, the written policy must include:

• A description of how and in what circumstances your company electronically monitors employees.
• How the information obtained through electronic monitoring might be used by your employer.
• The date that the electronic monitoring policy was prepared.
• The date that any changes were made to your company’s electronic monitoring policy.

The written policy can be stand-alone document, or it could be part of other documentation (i.e. a workplace human resource policies and procedures manual).

Which employees are included in the count?

Employers in Ontario must count every individual who meets the definition of “employee”, including:

• Staff members working from home
• Probationary employees
• Officers of a corporation who perform work or supply services for wages
• Employees on definite term or specific task contracts of any length
• Laid off employees (as long as the employment relationship has not been terminated and/or severed)
• Employees who are on a leave of absence
• Employees who are exempt from some or all parts of the ESA

Impact of adding or reducing staff

Whether or not your employer needs to have a written electronic monitoring policy in place depends on how many workers the company has each Jan. 1 (2022 and onwards).

• Example 1: If your company had 20 workers as of Jan. 1, 2022, but added five more employees in May 2022, they don’t need to have a written electronic monitoring policy in place for Oct. 11, 2022. However, if your employer still has 25 or more staff members by Jan. 1, 2023, they must have a written policy in place before Mar. 1, 2023.
• Example 2: If your company had 25 employees as of Jan. 1, 2022, but let go of five employees in May 2022, they still need to have a written electronic monitoring policy in place for Oct. 11, 2022. If your employer has less than 25 staff members as of Jan. 1, 2023, they do not need to have a written policy in place for the calendar year.

What if I don’t want to be electronically monitored by my employer?

The new ESA requirements don’t establish a right for workers in Ontario to avoid being electronically monitored by their employer.

As well, the legislation doesn’t create new privacy rights for employees in the province.

READ MORE
• Privacy Issues and Policy in Canada

Can I be fired if I refuse to be electronically monitored by my employer?

Employers in Ontario can fire you if you refuse to be electronically monitored during work hours. This is called a termination without cause.

Non-unionized employees can be let go for any reason, as long as:

• They are provided full severance pay
• The reasons for their termination aren’t discriminatory

WATCH: Employment lawyer Lior Samfiru explains what rights employees have if they are being fired or let go on an episode of the Employment Law Show.

What your employer can’t do in this situation is dismiss you for just cause, which would mean no severance package or access to employment insurance (EI) benefits.

To justify firing you for cause, your company would have to prove:

• Progressive disciplinary measures were applied
• A less severe punishment would be insufficient

This type of dismissal is reserved for the worst kinds of workplace offences, such as theft or insubordination.

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• How to Calculate Severance Pay

Employment lawyers for electronic monitoring issues at work

If electronic monitoring is creating problems in the workplace, use our free Pocket Employment Lawyer tool to determine if your situation requires further review by the experienced Ontario employment law team at Samfiru Tumarkin LLP.

Our Toronto employment lawyers and employment lawyers in Ottawa can help you assess your legal options and ensure your workplace rights are properly enforced.