As the June 2 deadline for employers in Ontario to have a policy on how employees can disconnect from work quickly approaches, lawyers like Céline Delorme of Ottawa’s Emond Harnden law firm are working hard to clarify what this new requirement actually means.
“It’s very important for employers and employees to understand that the policies will not create a ‘right to disconnect’ for employees, even though a lot of people have been using that term,” said Delorme, a partner at the local firm. “The requirement is only that an employer with 25 or more employees must have a written policy that addresses the issue of disconnecting from work.”
That’s a very important difference from the popular understanding of the Bill 27 changes to the Employment Standards Act, which many people believe will fully protect all employees from having to engage with employers after hours in any circumstances.
Under the new provision, disconnecting from work specifically includes not engaging in work-related communications, such as emails, telephone calls, video calls or sending/ reviewing other messages.
In other words, disconnecting implies freedom from the performance of work – however, the new policies will not necessarily guarantee that freedom.
“The provision requires an employer to make a policy that addresses the issue of reasonably disconnecting,” Delorme points out, “but it does not actually prohibit an employer from communicating with employees outside of work hours, period.”
Delorme and her colleagues at Emond Harnden – a boutique employer-side labour and employment law firm – regularly consult with public and private sector clients on the evolving nature of employee relations, a complex subject now that the pandemic has markedly increased the prevalence of working from home.
Unpacking the policy
So if the Bill is not about the right to disconnect, how will the newly required policies be worded? Because the nature of work is so varied, employers will need to tailor the policies to the nature of their business and to employee job duties.
“Employers should consider what is reasonably required for communicating with employees outside of work hours and their expectations regarding whether employees should look at those communications and respond,” explained Delorme.
In effect, the policies are about removing as much grey area as possible.
To that extent, employers with different types of positions and responsibilities may need to have more than one policy, or different requirements for different positions in the workplace under one policy.
Some of the nuances required in the policies could address questions such as: Is it important for the employee to be on the lookout for employer communications and respond right away? Are there certain co-workers with whom an employee has to communicate outside of work hours (e.g., a supervisor) and others with whom they don’t? Do certain issues require after-hours attention and a response, while others do not? What are the expectations, if any, for employees to use technology such as voicemail messages or out-of-office notifications to advise others about when they will respond?
In the big picture, the policies can not only help to ensure that employees know what is expected of them and thereby prevent conflict and misunderstandings, but “can also provide employers with a chance to evaluate what their expectations are with their business and their workplace culture,” noted Delorme.
At present, the policies and their effects remain new territory for all involved. That means that for now, communication is key.
“Communicating clearly with employees about the policy, including the employer’s commitment to it, is one way to convey that the employer is taking the policy seriously,” said Delorme.
“Over time, an employer will probably have to show by its actions that it is adhering to the policy,” she added. “If and when an employer decides to make changes to the policy, that has to be clearly communicated to employees as well.”