Guidelines on Drafting a Disconnecting from Work Policy

Who is Required to Implement a Disconnecting from Work Policy?

Employers that are covered by the ESA and employ 25 or more employees as of January 1 of each calendar year are required to have a written policy on disconnecting from work. However, the Crown, a Crown agency or an authority, board commission or corporation whose members are all appointed by the Crown and their employees are exempted from this requirement.

Employers that employ 25 or more employees as of January 1, 2022 have until June 2, 2022 to have a written policy on disconnecting from work in place. Beginning in 2023 and thereafter, employers that employ 25 or more employees on January 1 of any year must have a written policy on disconnecting from work in place before March 1 of that year.

How to Count Employees

To determine the number of employees an employer has, an employer must count all its employees in Ontario as of January 1. Any worker who meets the definition of “employee” under the ESA is counted, so an employer must also ensure to count, for instance, casual and part-time employees, employees on probation, employees on contract, employees on lay-off, and employees on leaves of absence. If the employer employs 25 or more employees as of January 1, then that employer must have a written disconnecting from work policy.

Where an employer has multiple work locations, the total number of employees employed in Ontario must be counted to determine whether the 25-employee threshold is met. If the total number of employees in Ontario exceeds 25 employees, then the employer must implement a written disconnecting from work policy (even if there are less than 25 employees employed at each Ontario location).

It is the number of employees as of January 1 of each year that determines whether an employer must implement a written disconnecting from work policy. For instance, if an employer employs fewer than 25 employees in Ontario as of January 1, then that employer does not have to have a written policy in place on disconnecting from work (even if the employer’s employee count increases to 25 or more employees at a later point in that calendar year). If an employer employees more than 25 employees in Ontario as of January 1, then that employer must implement a written disconnecting from work policy (even if the employer’s employee count decreases below 25 employees at a later point in that calendar year).

Employer Record-Keeping Requirements and Providing Copies of Written Policy

An employer must retain a copy of every written policy on disconnecting from work that was required by the ESA for three years after the policy is no longer in effect. An employer must also provide a copy of the written policy to its employees within 30 calendar days of the policy being prepared (and the policy being changed, if applicable). The employer must also provide a copy of the written policy to any new employees within 30 calendar days of the new employee being hired.

Employers can provide a copy of the policy to employees as a printed copy, an attachment to an e-mail (if the employee can print a copy), or a link to the document online if the employee has a reasonable opportunity to access the document and a printer (and is able to use the computer and printer).

Employers do not need to provide a copy of the written policy to employees annually if the policy has not changed from the previous year.

Requirements of the Written Policy

To be clear, Bill 27 does not create a right for employees to disconnect from work, and a disconnecting from work policy is not required to set out a right for employees to not perform work at certain times or to participate in work-related communications. Instead, an employee’s rights under the ESA with respect to the performance of work will continue to be established through other ESA rules, such as rules governing hours of work and eating periods, vacation with pay, public holidays, and rules in Ontario Regulation 285/01 that establish when work is “deemed” to be performed.

When developing a disconnecting from work policy, the policy must include the date the policy was prepared and the date any changes were made to the policy. Other than these requirements, the ESA does not specify what other information the employer must include, and it is up to the employer to determine the content of the policy.

The guide provides some examples of what an employer may want to address when developing its disconnecting from work policy:

• the employer’s expectations (if any) of employees to read or reply to work-related e-mails or answer work-related phone calls after their shift is over;
• the employer’s expectations for different situations. For instance, the policy may contain different expectations depending on
  • the time of day of the communication;
  • the subject matter of the communication, or,
  • who is contacting the employee (e.g. a client supervisor, or colleague); and,
• the employer’s requirements for employees turning on out-of-office notifications and/or changing their voicemail messages, when they are not scheduled to work, to communicate that they will not be responding until the next scheduled workday.

When developing its disconnecting from work policy, an employer should consider the fact that “disconnecting from work” is defined in the ESA as not engaging in work-related communications, including e-mails, telephone calls, video calls or sending or reviewing other message, to be free from the performance of work. This list is not exhaustive, and an employer should consider other types of work-related communications that are appliable to its workplace and may also fall under this definition.

The written policy on disconnecting from work must apply to all the employer’s employees in Ontario, including management, executives, and shareholders if they are employees under the ESA. However, an employer is not required to have the exact same policy for all its employees. The employer can implement a single policy that applies to all employees, or its policy can contain different policies for different groups of employees. For instance, the employer can choose to have one policy that applies to its office staff and a different policy that applies to its in-store sales staff.

Greater Right or Benefit

Should an employer decide to include a provision in its disconnecting from work policy that gives an employee the right not to perform work when the ESA would otherwise permit work to be performed, such provision may be enforceable under the ESA as a greater right or benefit. Such provision may also create contractual or common law entitlements. It is therefore important to seek legal advice on the best ways to draft a disconnecting from work policy to ensure the policy does not inadvertently provide employees entitlements greater than what is required by the ESA.

Next Steps

Employers that meet the 25-employee threshold on January 1, 2022 have until June 2, 2022 to prepare an implement a written policy on disconnecting from work. If you have any questions about the disconnecting from work policy requirements and how it affects your workplace, please get in touch with us for assistance.