The pandemic has led many employers to embrace work-from-home arrangements with their employees, but that doesn’t mean they can’t check up on them.
“The lines between home and work have blurred due to the pandemic, so the Ontario government is mandating that employers be transparent about whether and how they electronically monitor their employees,” said Negeen Yazdani, a labour and employment lawyer with Emond Harnden LLP.
Bill 88, the Working for Workers Act, 2022, amended the Employment Standards Act, 2000 (the “ESA”) to require employers to implement a written policy about their electronic monitoring practices with respect to employees. “The law’s purpose is to enhance protections for workers’ privacy by requiring employers to be transparent,” said Yazdani.
“Electronic monitoring isn’t just limited to the employer’s devices,” added Yazdani. “An employee who works remotely or who does work using their own personal computer would also be captured by the requirement.”
While employees aren’t getting any new privacy rights and employers won’t need to stop or change what they’re doing, employees can now expect their employer to be transparent about how they’re electronically monitoring their employees.
What is electronic monitoring?
While there’s no definition of electronic monitoring in the ESA, the Ministry of Labour has published a guide to help employers interpret the new requirements. It’s a broad definition that goes far beyond text messages and surfing the web.
“Electronic monitoring can include GPS to track movement of an employee delivery vehicle or when an employer uses an electronic sensor to track how quickly employees scan items at a grocery store,” said Yazdani.
What do employers need to know?
On January 1, 2022, Ontario employers with 25 or more employees must have a written policy in place by October 11, 2022 and make it accessible to their employees 30 days after that. After 2022, employers who meet the threshold on January 1 of a given year must have a policy in place before March 1 of that year.
The policy must include complete information about how employees are monitored and the purpose for which the information is used.
If you’re an employer who doesn’t electronically monitor employees, you’ll still need a policy that states that.
When it comes to crafting the policy, one size may not fit all. “There can be different policies in place for different groups of employees,” said Yazdani. “What might be applicable to a cashier might not be applicable to someone in the head office.”
Yazdani advises that while the policy does not need to be lengthy or complicated, consulting with an employment lawyer will help employers be sure they’re in compliance with the law.
What are other requirements?
“This policy will need to be updated as practices change and new technology becomes available,“ said Yazdani. “Employers can’t just draft the policy and let it sit on a shelf for years.”
While the ministry won’t be checking up on employers, employees can file a complaint if they do not receive a copy of the policy within 30 days of the policy deadline that will then be investigated. Depending on the situation, employers may be issued a warning before being fined.
Employers will need to retain a copy of every written electronic monitoring policy for a period of three years after the policy is no longer in effect.
If you’d like some initial information, the Ministry of Labour has created a guide for employers.
Still have questions about your company’s electronic monitoring policy? Reach out to Negeen Yazdani or any other lawyer at Emond Harnden today to ensure your team understands the requirements: ehlaw.ca