Throughout the pandemic, working from home has blurred some lines between employee’s personal life and work life. As kitchen tables have become offices, many employees have extended their work hours and fallen victim to the “always on” culture. A hybrid workplace can be beneficial, but there needs to be intentionality about creating clear boundaries of when employees are expected to work and when they are not required to respond to emails, answer calls and slide into overtime.

The new Bill 27 Working for Workers Act, in its intention, has been created to provide some direction for workplaces in this regard and amends the Employment Standards Act.  The Act requires that every provincially regulated employer in Ontario that employs 25 or more employees must create a written policy that outlines disconnecting from work. Disconnecting in this context is defined as “not engaging in work-related communications, including emails, phone calls, video calls, or the sending or reviewing of other messages, so as to be free from the performance of work”. The requirement for a policy must be met by June 2nd, 2022.

The new right to disconnect policies are intended to create those much-needed boundaries but in practice we have yet to know if they are going to have a positive impact, or any impact at all for that matter. The required content of these policies is not made clear other than the number of employees needed for the policy to be required, that a written copy must be provided to employees and the obligations for employers regarding dates and timelines. The employer is left to their own devices to determine exactly what content the policy will include. The law does not actually limit the ability to work beyond an employee’s normal hours, nor does it create any new rights for employees to actually disconnect from their work; the Act simply states that employers need a policy.

At this time, there is little guidance to clarify what is needed in a disconnect policy so as long as an employer with 25 or more employees writes and distributes some kind of policy that has to do with disconnecting from work, then they will have complied with their obligation under the Act. Regardless of what the policy says, as long as there is one, the employer has reached their obligations.  In effect, the policy could little more than simply acknowledge that employees have the “right” to disconnect and it would be considered valid under the current legislation. The problem with this is that there is really no “right” at all, despite the misleading title. The change to the legislation does not create a new right for employees. The Employment Standards Act does however already provide for protections of this kind for employees through overtime provisions, hours of work, vacation time, etc.

Unfortunately, this language of a “right” to disconnect appears to muddy the waters when the rise of flexible working arrangement changes the daily 9-5 mentality of many workplaces. We have seen a rise in employers offering flexible schedules for employees working from home to be able to better manage their responsibilities such as child or elder care. There are also many organizations that have not adhered to a 9-5 shift schedule for decades, operating on a continuous model instead with various shifts and never-ending operation. With increased flexibility and these continuous operation workplaces it likely translates to different schedules for employees within organizations, meaning that a disconnect policy may not be relevant. Then it begs the question of when an employee is to disconnect. If an employee works 12pm till 8pm, are they not permitted to correspond with other employees after 5pm, or does it simply mean the other employees do not need to respond until the following morning? While many employers could work this out internally, the lack of guidance within the Act clearly shows in these kinds of circumstances. On the plus side, the lack of guidance allows for discretion for each employer to address unique needs of their employees. More than one policy may be used to govern different positions or schedules, but this discretion is only useful if the employer is intentional in their policy and genuinely uses the opportunity to create that work-life divide for their employees rather than just drafting to simply satisfy their obligation under Bill 27.

There are so many considerations that the Act does not address which leaves both employers and employees in the dark as to whether this policy will actually fix the initial problem it was intended to solve. Questions regarding overtime, making up appointment times or how to continue reaching important deadlines have emerged unanswered. There are currently no exemptions as to which employees this policy will apply to. Under the ESA we have seen exemptions from overtime pay for various positions such as dentists, doctors, lawyers, architects or psychologists, but as it stands now a right to disconnect policy would apply to all employees regardless of position.

The change in legislation was meant to address a dynamic workforce where remote work has accelerated and work-life balance has been blurred, but whether it will actually address the very nature of these new flexible work arrangements rather than simply enforcing the traditional 9-5 mentality has yet to be answered. In practice, it is hard to say at this time what effect the right to disconnect will have, but it seems to interrupt the flexibility employees really desire at this time. As the workforce continues to evolve, a right to disconnect policy would promote work-life balance in keeping with the desired theme of better workplaces, but we will have to wait to see what effect it really has in practice.

For more information on the rise of flexible work arrangements, check out our blog entitled, “Flexibility and the Hybrid Workplace”.

From a workplace culture viewpoint, having a policy that promotes disconnecting from work can be a very good for retention purposes/recruitment and if used correctly may increase employee satisfaction. So, the fact that the Act itself provides little guidance can be overcome if an employer takes the initiative to develop a policy and system, coupled with enforcement measures, that works well in their unique workplace. This change in the legislation may be just enough to nudge employers to consider ways that such a policy could be used in their organization to make a change for the better for their staff.

Therefore, while the intention is good and it opens up the conversation for improvement in the area of work-life balance, more guidance regarding the content and enforcement of the policy is needed. Thankfully, there is a strong possibility that the government may release regulations and specific content guidance in the future so this may just be the first step to better protection for work-life balance in Ontario.