What Ontario's new workplace electronic monitoring policy actually means for employees

New legislation requiring employers in Ontario to disclose electronic monitoring in the workplace will increase transparency but does not provide employees with any new privacy right, employment lawyers say.

The Ontario government passed legislation in April requiring employers with 25 or more employees to have an electronic monitoring policy.

This could cover whether an employer is monitoring an employee's computers, cellphones or GPS and the extent to which it is occurring.

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The disclosure requirement came into effect on Tuesday and employers now have 30 days to provide workers with a written copy of the policy.

However, Mackenzie Irwin, a Toronto-based employment lawyer with Samfiru Tumarkin LLP, told CTV's Your Morning on Thursday that one of the main criticisms of the legislation is that it does not provide employees with any new rights at work.

Rather, it requires employers to be upfront and transparent with their workforce about what they are actually monitoring.

"In terms of where that line is drawn, it's really not clear at this time," Irwin said.

Employees would be unable to challenge any monitoring under the legislation.

Irwin said employers are allowed to monitor their workers as long as it is for a "legitimate business purpose" and is as "minimally invasive as possible."

Despite this, she said there could be a lot of pushback from employees once they learn the extent to which this monitoring is occurring.

"It's going to be a very interesting time in Ontario in November to see what monitoring is actually going on," she said.

The legislation comes as remote work became much more common during the COVID-19 pandemic.

Alberta, British Columbia and Quebec have privacy legislation that sets some limits on the ability of private-sector organizations to collect employee information.

Speaking to The Canadian Press, Ontario Labour Minister Monte McNaughton described the policy as a "first step" and the first of its kind in Canada.

"This will give the government a clearer picture of what employers are doing," McNaughton said Tuesday.

"I think it's safe to say that there's going to be more to come in the near future when it comes to protections and creating more opportunities for workers."

Sundeep Gokhale, an employment and labour lawyer with Sherrard Kuzz LLP in Toronto, told CTV News Channel on Tuesday that employees have likely assumed their employer is monitoring them.

"At the heart of it, it's really about keeping employers honest and transparent and creating that open line of communication between an employer and its employees," he said.

The challenge for some employers, Gokhale said, could be the lack of a definition in Ontario's Employment Standards Act for electronic monitoring.

In the end, it may come down to whether an employer is storing, and has access to, electronic information from its employees and whether it is systemically reviewing that data.

"So if you're an employer and you monthly get a report on keystrokes or websites visited, whatever the nature may be, then yes you're going to have to disclose that," Gokhale said.

"But simply just storing emails and not having a systemic review or something of that nature won't trigger electronic monitoring."

With files from The Canadian Press