March 2022 InTouch Magazine

All employers with 25 or more employees as at January 1 of this year are required to have a written disconnecting from work policy in place by June 1. The requirement arises from the Working for Workers Act (the “Act”), passed on December 2, 2021, which changes the Employment Standards Act (“ESA”). From 2023 onwards, employers with 25 or more employees January 1 of any year will need to have a written disconnecting form work policy in place by March 1 of that year.

What does “disconnecting from work” mean? It means “not engaging in work-related communications, including emails, telephone calls, video calls or the sending or reviewing of other messages, so as to be free from the performance of work”.

If you are an employer with 25 or more employees, you might be wondering what exactly you need to include in a disconnecting from work policy. You are not alone. The provincial government has not provided any guidance to date. The Act suggests that regulations might be passed but this is far from a commitment. Even with regulations, it is unlikely that a one-size-fits all policy will work across all places of employment and across all types of positions.

At first instance, the need to draft yet another policy during a time where human resources issues may be dominating your time already, might seem frustrating. There may, however, be a bright side that ultimately helps you and your organization succeed.

Most of us agree that the line between work and home has become even more blurred in the last couple of years. While we may hope to go back to the glory days of 2019, it is possible that workplaces and employee expectations will never be the same. A good disconnecting from work policy is an excellent opportunity for employers to outline their expectations of when work is to be performed, when the employee is expected to be accessible for business needs, and when an employee is expected to take much needed time off. Clear expectations are even more important for the employees who work remotely and may continue to do so in the future.

Now is a good time to think about how your business needs can be balanced with your employees’ right (and need) to disconnect. The balancing process may differ between classes of employee, depending on the nature of your business. For example, your expectations of a senior manager are likely to differ from those of a junior employee, as will expectations of a remote worker versus someone working on the floor. In addition, you will need to ensure that your policy does not create unexpected liability to overtime pay or complaints under the ESA, particularly with respect to hours of work, sick leave and vacation.

If you would like assistance in drafting a disconnecting from work policy, the lawyers at Waterous Holden Amey Hitchon LLP are here to help.