Ontario's 'right to disconnect' law: Who qualifies and what are the loopholes?

CTV National News: The push to disconnect The federal government wants to amend the labour code to prevent employers from communicating with employees outside scheduled hours.

Ontario’s “right to disconnect” law came into effect on June 2, requiring companies to develop policies that allow employees to disconnect outside of regular office hours, but what does it mean in practice?

The new law – the first of its kind in Canada – comes with big loopholes and ultimately does not add much to existing laws, according to two employment lawyers who spoke with CTVNews.ca.

“It's very shiny and it looks very impressive, but once you look into it substantively, there's no skin on the bones to this,” Jared Lecker, an associate with Lecker & Associates focusing on employment law and human rights in the workplace, said in a phone interview.

Here is what you should know about what the law says, how it came to be, what the key loopholes are, who is excluded, and more.

WHAT DOES THE LAW SAY?

The new law is part of the Working for Workers Act. It requires employers to have “a written policy in place for all employees with respect to disconnecting from work” and requires all employees be given a copy within 30 days of its creation or if any changes are made to an existing policy.

The law defines “disconnecting from work” as “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.”

Legal experts, however, say the way the Ontario law is written is very bureaucratic and does not cover significant new ground.

“It creates nothing more than an obligation for an employer to have a policy and most employers in my opinion, will not create a substantive right to disconnect,” Daniel Lublin, a founding partner at Whitten & Lublin, a law firm specializing in employment and labour law, said in an phone interview.

“I’m taking a very dim view of it. It’s just another procedural rigamarole.”

Lublin said it allows companies to draft a policy in a way that maintains some ambiguity or gray area – for good reason.

“How can you effectively run a business if there's an urgency and everyone has the right to just avoid responding to emails after hours? I certainly couldn't run my business that way and I think a lot of business owners feel the same way.”

Lecker said questions and details around what can be sent or communicated after hours, what can wait until later, who are the employees that have to respond immediately and who are the ones who do not, are left up to companies to figure out.

“All it says is that there has to be this written policy in place for all employees. So as long as they have a quote unquote ‘policy’ with respect to what it means to disconnect from work…these [details] are left up to the individual businesses,” Lecker said.

Even lawyers are not clear what happens if an employee refuses to respond to work communication after hours because the law is left intentionally vague, he said, adding that it may be up to courts to determine.

WHO IS AND ISN’T INCLUDED IN THE LAW?

The law applies to all employers in Ontario who have 25 or more employees as of the first day of each calendar year. It excludes 39 per cent of Ontario private sector workers, however, because the law does not apply to federally-regulated businesses. These industries include air and ground transportation and services, all banks, most federal Crown corporations, port services, broadcasting, telecommunications, and any business that are vital to the operation of these companies and services.

HOW DID THE LAW COME ABOUT?

The Working for Workers Act was proposed by the provincial government in 2021 in response to concerns around burnout, particularly during the pandemic when working from home meant lines between work and home blurred even further.

In 2017, France became the first country to adopt such a law, granting workers the right to not answer work-related communications outside work hours and prohibiting companies from penalizing employees who do not respond. Other countries including Italy, Spain, and Ireland have since followed suit. In Germany, where it is not enshrined in law, companies like Volkswagen and Henkel have nonetheless implemented policies with similar goals.

WHAT ARE SOME MAIN LOOPHOLES?

A key loophole in Lublin’s view is the line that stipulates, “if the employer’s policy on disconnecting from work does not create a greater right or benefit, the policy is not enforceable under the ESA [Employment Standards Act].”

“What they're saying is, there's no legal right to disconnect…The Ministry of Labour won't do anything unless the employer created more than they needed to and refused to follow it,” Lublin explained.

“What employer would do that?”

The law is so vague and broad, Lecker said, that a company could in theory be in compliance even if its disconnect-from-work policy applies only from 5:59 a.m. to 6:01 a.m.

“As long as they don’t contact you between those two minutes, they’ve complied,” he said of the extreme example, adding that it’s a law that essentially favours the employer.

WHAT HAPPENS IF AN EMPLOYEE IS CONTACTED OUTSIDE OFFICE HOURS?

A major concern for many employees are the consequences if they push back on work requests after regular hours. Could they be fired? Would it endanger their chances of a promotion?

Lecker said these concerns are legitimate. While there are sections in the law that aim to protect employees against reprisals or being disciplined, it’s still possible they could be overlooked for a promotion or a raise, or fired for another reason, he said.

“The risk is still that they can decide that you’re more likely to be restructured than your colleague who says, ‘please feel free to contact me whenever,’” Lecker said.

“If someone were to come to me and say they were contacted outside of the disconnect hours, I don't even know what we would do in order to try and remedy the situation.”

CAN I GET ‘IN LIEU’ TIME?

Some clients have asked lawyers whether they are able to get “in lieu” time, for example, where they can accumulate hours where they do not need to be connected. As the law stands, the answer is no; there is no system to earn hours where you do not have to be connected, according to Lecker.

WILL THE LAW BE EXPANDED LATER TO GIVE MORE GUIDANCE?

For the time being, there is no indication the law will be amended.

WHAT ABOUT FEDERALLY-REGULATED WORKERS?

While there are no equivalent “disconnect from work” laws for federally-regulated industries, there are other provisions in the federal sphere for various industries that protect worker boundaries in other ways, Lublin and Lecker said.

There are guidelines around the number of hours they can work, vacation time, holiday time, and holiday pay. Truckers, for example, must have a certain amount of break time in between their shifts for safety reasons.

“It's not exactly the same, but they have similar rights to disconnect, if you want to put it that way, that have a little more teeth as it stands, but not this broad right to have a work-life balance,” Lecker said.

ARE OTHER PROVINCES CONSIDERING THIS LAW?

While the pandemic and Ontario have put the “right to disconnect” on the radar in other parts of the country, no other province is even close to putting anything into law, with most appearing to take a wait-and-see approach, the lawyers said.

The Employment Standards legislation is fairly comparable across different jurisdictions in Canada, Lublin noted.

“They all do seem to copy each other in a way and Ontario seems to be leading the charge. So, you may see another province go in on this with slight variations.”

HOW CAN COMPANIES MAKE IT WORK BETTER?

In Lublin’s view, the law is a political play designed to generate votes that is “riddled with loopholes.” But he noted that some companies may treat this new law seriously and do the right thing by creating a clear policy and explicit guidelines.

“Some companies will actually embrace it in order to attract and retain talent,” he said.

“They'll create something they didn't need to actually create, but in doing so, give it teeth … There's an opportunity here if we think positively for a second – how companies attract and retain talent, and position themselves as a workplace that's super flexible.”

WHAT HAVE SOME COMPANIES SAID?

CTVNews.ca reached out to several companies for a sample of how they are tackling the new policy. Here is what some of them had to say.

IBM Canada said in an email that its new policy aligned with the law and encouraged employees to prioritize work-life balance. “The new policy also encourages IBMers to utilize a lot of the programs and policies we already have in place as part of our efforts to maintain a supportive, balanced culture (i.e. wellness programs, flexible work schedules, vacation, etc.).” The company said it was also looking at ways to “disconnect” that reinforced work-life balance and well-being.

Enbridge said in an email that it has guidelines around disconnecting from work while also managing its business and operational requirements. The energy company said while the policy “generally means not engaging in work-related activities and communications, including emails, telephone calls, video calls or the sending or reviewing of other messages when they will be away from work during regular working hours,” how and when an employee may disconnect from work will depend on factors such as their role, business needs, and other considerations like applicable employment and collective bargaining agreements. The company noted that it operates critical energy infrastructure assets that require continuous operation 24 hours a day and said its disconnection from work policy is “designed to work with Ontario Employment Standards and collective bargaining agreements and does not amend or replace them.”

Google said in an email that it already has existing guidelines in place that align with the new Ontario law, including detaching employees from work outside of office hours. It also highlighted existing policies that offered employees flexibility and choice, including flexible work weeks, “work-from-anywhere” time, and “reset days” that allow employees to recharge.