Right-to-Disconnect Rules for Employees in the Spotlight 

Canada’s Federal Labour Minister said in an interview on Friday that the rights of workers to disconnect after hours while working from home need to be clarified, as working from home becomes the new normal. Filomena Tassi, MP for Hamilton West-Ancaster-Dundas, said workers are often tapped after-hours to respond to emails and other work-related business.

The right-to-disconnect issue has been raised several times in the past few years, initially proposed as an amendment to the federal labour code in 2018.

The debate was sparked in 2016, when France adopted a law giving workers the right-to-disconnect and turn off their work devices outside of business hours. The move was an attempt to reduce burnout among employees who are expected to respond to emails and texts they receive from work after hours, and as the increase in social media and mobile devise make the lines between work hours and personal time become less clear.

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Tassi says that the pandemic has seen a massive increase in workers working from home, reaching 5 million last month, making the right-to-disconnect an even greater priority for the government. With the pandemic putting strain on the mental health of workers, it is important to seek a better work/life balance and allow employees to leave their work when working hours are over. A special committee has been created and is expected to deliver recommendations this spring, according to Minister Tassi.

Can my employer force me to respond to work outside normal hours?

According to current provincial employment legislation in Ontario, the current maximum hours of work an employee can be required to work is 8 hours in a regular workday. There must be a written agreement between employer and employee if the hours of work are to exceed 8 hours. Any agreement, however, does not exempt the employer from having to pay overtime in Ontario. The Employment Standards Act (ESA) states that most employees must be paid overtime pay for any work that is performed after 44 hours each week. The rate of overtime pay is 1.5 times the regular pay rate.

Employees who have changes made to their work demands could also be eligible to claim a constructive dismissal, if their employer make changes or demands upon an employee that exceeds the original understanding of their work.  Expecting employees to consistently respond to emails or perform work after a regular workday could constitute a constructive dismissal, since employees do not necessarily agree to the changes being made to the original agreement regarding the nature of their duties for their employer.

Minister Tassi says that in some cases where right-to-disconnect rules have already been put in place, employees have cited mental health concerns as reasons for eliminating unreasonable expectations by employers for them to be available at all hours.

Implementing legislation on the right-to-disconnect could also benefit parents who may feel disproportionately affected and ultimately limited in their careers if they can’t be reached by their employers after-hours due to parental or caregiving responsibilities.

When to contact an employment lawyer

If you feel your employer has made changes to your original work agreement, and you would like to explore a constructive dismissal claim, contact Samfiru Tumarkin LLP.

The employment lawyers at Samfiru Tumarkin LLP in Ontario, British Columbia and Alberta can identify when you have legitimately experienced a constructive dismissal, what your options are, and how to respond to your employer when certain types of changes are made to your job without your consent. Our team has helped thousands of employees successfully navigate a constructive dismissal and obtain the severance pay they deserve. Contact us online or call 1-855-821-5900.