Earlier this month, many Ontario employers were required to have a right-to-disconnect policy, but experts say the vague legislation may not stop after-hours emails and calls as soon as some employees might expect.
The plan was conceived in the depths of the pandemic when many Ontarians began working remotely. Advocates hoped the provincial government’s right-to-disconnect policy, which forms a section of the Work for Workers Act, would address work/life balance.
Employment lawyers and human resource management professionals say it is a positive first step and may contribute to changes in some work cultures, but many say it relies too much on a good employer to get it right.
“The legislation is pretty ineffective,” said Matthew Fisher, a partner at Lecker & Associates Law who specializes in employment law. “What it really does is it requires employers of a certain size in certain circumstances to come up with a policy,” he added.
“The problem is that they rely on the good faith of the employers… There’s nothing in the legislation that requires the policy to be reasonable.”
June 2, 2022, was the deadline for Ontario employers with more than 25 workers to have written policies. They are supposed to detail how employees can disconnect from work-related communications, including emails, audio, and video calls, and sending or receiving messages when they must be off the clock. The policy may or may not include details regarding the time of day, the types of communication that are acceptable, and who may communicate with an employee outside of work hours.
Fisher says that, hypothetically, a cynical employer could make a policy that says employees “have the right to log off between 4 a.m. and 4:15 a.m. on Tuesday.”
A win for good employers?
Erin Bury is the CEO of Willful, an Ontario startup that helps people with online estate planning.
Bury says she proactively created a right-to-disconnect policy just before Ontario’s legislation was passed. His company is just under the 25-employee limit, but it is growing, which means it may have to have one soon.
“Before the pandemic, we had an office in downtown Toronto and we had an office culture… It was fairly easy to disconnect because you just physically left the office,” he said.
But the company now operates remotely with some employees in other time zones, which means someone in B.C. could email someone in Toronto after normal business hours, she says.
The company’s right-to-disconnect policy encourages employees to schedule emails, turn off chat notifications on their phones after hours and consider sending a video message instead of holding a late meeting, she says.
The policy also states that while there may be times when after-hours tasks are required, if it becomes a pattern, there is recourse for the employee, whether management addresses the cause or offers a time replacement.
Bury says Willful’s policy has been positively received. He would have liked to have seen the government policy made mandatory for smaller companies and noted that the start-up culture can lead to overworked employees.
Confusion around the legislation has generally led to positive action by good actors, says Steph Little, senior human resources consultant at Bright + Early, a Toronto-based human resources consulting firm.
Good employers, including some that have fewer than 25 employees and no legal need for a policy, were encouraged by discussions on the topic, she says. Employers wanted to “be more proactive, get ahead of the policy and put things in place to make sure people can disconnect.”
Her clients have reported better productivity and organization from both managers and employees when people have realized they must get everything done within business hours.
Detailing work rules that are sound and desirable is “really attractive to candidates and appreciated by existing employees as well,” he said.
Too much at the employer’s discretion
The problem is that not all companies will be willing to go beyond what the law requires, which isn’t much, says Daniel Lublin, an employment lawyer and founding partner of downtown Toronto-based Whitten & Lublin.
“Few companies will shackle themselves with the inability to call employees for urgent after-hours situations,” he said.
“It’s disingenuous to call it a right to disconnect,” he said because so much comes down to the employer’s discretion of whether it wants that to be the case.
“It really comes down again to whether an employer has made the decision to create a substantive right or not,” he said.
But for companies that incorporate the right to truly disconnect into their policy, it means employees can go to the Ministry of Labor if they were reprimanded, suspended, or terminated for failing to respond to something outside the timeframe set out in the policy.
Nita Chhinzer, a professor of human resources and business consulting at the University of Guelph, says companies that traditionally violate labor law “are not going to suddenly start complying with this law when they haven’t complied with others.”
Predatory employers will continue to do what they like and “run by a culture of fear,” Chhinzer says.
However, “it will provide employees with a path of correction,” and the intent to reduce the burnout that comes from prolonged stress is a very good thing, he says.
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