The Working for Workers Act passed on November 30, including among its provisions a new law that employers with 25 or more employees create a written policy about the right to disconnect from email contact and calls outside of regular work hours. Employers have six months after the law gets royal assent to comply.
Labour Minister Monte McNaughton said the lines between personal time and work time became blurred during the pandemic when many white-collar workers began working from home for the first time. Ontario is the first province to pass a law about the right to disconnect, said the minister. Employers will have to be transparent with employees about their right-to-disconnect policy, he said, and workers can also ask prospective new employers about such a policy as part of their interview process.
Alexandra Samuel, author of “Remote Inc.,” said many people worked remotely before the pandemic, and had worked out policies and strategies to keep a healthy balance. However, the huge number of workers who suddenly started working remotely in 2020 didn’t have that same experience, she said, and neither did their employers.
“People who were working remotely before the pandemic did not experience the same degree of … burnout that we saw among new remote workers,” Samuel said. One of the main factors in that burnout wasn’t simply the pressure to respond to emails after hours. It was the structure of the work day that often led to after-hours work, explained Samuel: in-person office culture did not translate well to the home, and many people found themselves in back-to-back video meetings that wasted precious time, while trying to handle their home responsibilities.
Andrew Caldwell, advice-team lead with HR firm Peninsula Canada, said it’s unclear yet what this new law will look like in practice, including who might be exempted from the right to disconnect. “It’s this vague idea that’s been put out there, but there’s no substance behind it as of yet,” he said.
The law doesn’t dictate the content of the policy, said Caldwell, so employers will have to determine what their policy needs to include. He suggests that organizations use out-of-office emails to make clear when someone isn’t available, and outline emergency exceptions to the rule.
Samuel said any organization seeking to improve its policies on work-life balance should look not only at the right to disconnect outside of work hours, but what those work hours are and how they should be spent. For example, some people might want to do an hour or two of work in the evenings and get some errands done during the day, she said. Others might have an easier time shutting off communication at 6 p.m. if they have fewer video meetings cluttering up their schedule.
“Organizations are using the transition back to the office as the opportunity to develop coherent strategies and policies around hybrid work, that also then create some more thoughtful agreements around remote work,” said Samuel. She cautions that it’s still a mixed bag: “I think it’s been a mix of organizations putting explicit policies in place, managers getting smarter and less controlling about how they support their team members, and then individuals figuring out the strategies they can use for their own work.”
Employment lawyer Jon Pinkus thinks the law itself is “toothless,” too vague to hold employers accountable. “It sets no minimum standards for what … the right to disconnect has to be,” said Pinkus. “It really imposes a procedural obligation on the employer without imposing any substantive obligation.”
Without more specific minimum standards, Pinkus isn’t confident the law will have a significant impact on most employees. Still, he acknowledged it will likely galvanize some employers to take such a policy seriously and listen to employees’ concerns. “I think that employers who are potentially somewhat inclined to do something may use this as kind of a wake-up call,” Pinkus said.
Potential Implications – After Hours Calls for Hourly Workers
Howard Levitt, senior partner of Levitt Sheikh, employment and labour lawyers discusses work calls that take place after hours. First and foremost, employees choosing not to respond an employer call when the policy permits disconnection, obviously, is no longer cause for discipline.
However, what will surprise most is that the Ontario Employment Standards Act may stipulate a minimum of three hours pay for an employee even for a 30-second, after-work call. This is not a change to the law. Section 21.2(1) states that “if an employee who regularly works more than three hours a day is required to present himself or herself for work but works less than three hours… the employer shall pay the employee wages for three hours.”
It has commonly been assumed that the section required employees to actually attend the office but, with so many working from home, it cannot be interpreted that way. Even for those employees who work in the office, presenting oneself could well be interpreted to mean to make oneself available to perform work. That interpretation has not yet been tested, but employers contacting employees after hours will incur massive unexpected liability if the section is interpreted that way. This will not apply to salaried employees whose income includes work after hours.