Right to disconnect legislation and its impact on Canadian employee rights

Interview Summary

Employers in Ontario in accordance with Bill 27, the Working for Workers Act, have been instructed to have a written policy regarding employees’ right to disconnect from the workplace. Will the legislation be enforced in reality? Will other provinces decide to implement their own right to disconnect legislation?

Mackenzie Irwin, a Toronto employment lawyer and Associate at Samfiru Tumarkin LLP joins Ben O’Hara Byrne to discuss employee rights and employer obligations in regard to the disconnect policy.

Interview Notes

• What is Bill 27’s right to disconnect: The legislation defines disconnecting from work as not engaging in work-related communications, free from the performance of work, outside of regular work hours. This legislation does not actually require employees to be given the right by their employers to disconnect.
• What does the right to disconnect legislation do in reality: The purpose of this legislation seems to be to ensure employers turn their minds to the blurring of work and home life for all of their staff and re-evaluate their expectations and communications.
• Change to employee rights as a result of policy: Ultimately it will depend on the actions of the employer and what is included in each right to disconnect policy. All normal statutory rights for employees continue to apply, such as rules regarding overtime pay. It is important to remember that what is put into a policy must be upheld by an employer and if a breach occurs, an employee can file a complaint with the Ministry of Labour.
• Employer obligations in regard to the policy: Employers have up until June 2nd, 2022 to provide a right to disconnect policy to their employees. Many employees have experienced an increase in tasks and responsibilities from their employer while working from home. Employers cannot add or change fundamental terms to an employee’s position without their consent which can lead to constructive dismissal.
• Right to disconnect in other jurisdictions: No other province has implemented right to disconnect legislation in Canada. Other countries have adopted similar legislation or goals to impose a healthy work-life balance, like France.
• Employer rights to contact employees outside of work hours: In accordance with the legislation, employers do not actually have to provide employees with the right to disconnect. Presumably, an employer could include provisions in their policy that outline expectations of employees and when they would have to be available outside of regular work hours.
• Disconnect laws in other Canadian provinces: The federal government of Canada has created a committee to provide recommendations for federal employees and whether or not right to disconnect laws should be implemented. Currently, the Working for Worker’s Act disconnect law only applies to employees in Ontario and to employers who have more than 25 employees.