Employees often struggle to create boundaries between work and personal lives in an increasingly connected world. Similarly, employers may struggle to understand employees’ rights to disconnect from work outside their regular office hours.
These challenges have become especially apparent after the COVID-19 pandemic and the proliferation of remote work: according to Statistics Canada, over 20% of the Canadian workforce worked from home in 2023. With more workers working remotely—and having round-the-clock access to their workstations—finding a balance has become more difficult than ever for both employees and employers.
Ontario amended the Employment Standards Act, 2000, S.O. 2000, c. 41 to include directions on employees’ right to disconnect from work. Below, we’ll discuss the relevant provisions and what they mean for Ontario’s employers and employees.
What is the “Right to Disconnect”?
The “right to disconnect” refers to the ability for employees to not engage in work-related communications. This definition, as outlined in the Employment Standards Act, 2000, S.O. 2000, c. 41, includes emails, telephone calls, video calls, and the sending or reviewing of other messages.
From a practical perspective, the right to disconnect means exactly that: some employees have the right not to be available for work-related communications outside of working hours.
The Employment Standards Act and the Right to Disconnect
Beginning in 2023, Ontario employers that employ 25 or more employees were required to create a written policy on disconnecting from work. A copy of this policy must be provided to every employee and if any changes are made to the policy, the updated policy must be provided to every employee within 30 days of the changes being made.
What Does a Right to Disconnect Policy Cover?
While Ontario employers that employ 25 or more employees must have a right to disconnect policy, they are free to set their own policies. This means that employees do not necessarily have the right to disconnect from work if their employer’s policy does not provide that right.
For example, a disconnecting from work policy might include the following topics:
- Whether the employer has expectations that employees will read or reply to work-related communications outside of their normal office hours generally.
- Specific situations where an employer expects employees to read or reply to work-related communications (for example, when the work-related communication relates to a particular situation, or when a particular client or employee is attempting to contact the employee).
- Whether the employer has expectations regarding how and when employees will use out-of-office notifications (for example, when an employee is on holiday).
What if the Right to Disconnect Policy is Not Followed?
If a right to disconnect policy creates a greater right than an employee has under the Employment Standards Act, 2000, S.O. 2000, c. 41, it must be followed. For example, if an employer creates a right to disconnect policy stating that employees are not required to read or respond to work-related communications outside of their normal working hours, then that right can be enforced under the Employment Standards Act, 2000, S.O. 2000, c. 41 if the employer were to disregard the policy.
Other Employee Protections Relating to Working Hours under the Employment Standards Act
Employees have other protections under the Employment Standards Act, 2000, S.O. 2000, c. 41 that may interfere with a right to disconnect policy. Remember that these protections do not provide a right to disconnect; however, they may be informative for employers and employees when creating a right to disconnect policy or determining whether a right to disconnect policy is being followed.
Hours of Work
Unless an employee is exempt, the maximum number of hours an employer can require an employee to work is 8 hours and the maximum number of hours an employer can require an employee to work in one week is 48 hours. However, the employer and employee can exceed these requirements if they have a written agreement stating otherwise.
Additionally, employees must get at least eight hours off between shifts (unless the total time worked on both shifts is 13 hours or less) unless the employer and employee have a written agreement stating otherwise. Employees must also receive at least 24 consecutive hours off work in each work week or 48 consecutive hours off work in every period of two consecutive work weeks.
Vacation Time
Employees who have been with an employer for less than five years are entitled to two weeks of vacation time per year, and employees with five or more years of employment are entitled to three weeks of vacation time.
Public Holidays
Generally, employees are entitled to take public holidays off and be paid public holiday pay, unless the employee and employer have a written agreement stating otherwise. Keep in mind, however, that employees in certain industries may be required to work on public holidays.
Strategies for Achieving Work-Life Balance for Ontario Employers and Employees
Ultimately, Ontario employers benefit from promoting work-life balance among their employees, and establishing a solid right to disconnect policy is just one step that can help with this initiative. Below, we’ll cover some additional topics to consider that can help set effective boundaries and promote employee well-being:
- Establish Clear Policies: Be clear when establishing a right to disconnect policy, or other policies relating to work expectations. This step not only involves creating comprehensive policies that make expectations clear for both employers and employees but also effectively communicating the implications of these policies for employees.
- Walk the Walk: It’s equally essential for employers to follow their policies! If you create a right to disconnect policy, ensure that you are following the terms of the policy and respecting employees’ time outside of work hours. Consider waiting until working hours to send work-related communications unless necessary (in many cases, you can schedule messages to be sent at a particular time to avoid messaging employees outside of office hours).
- Encourage Personal Time: Promoting breaks and vacation time can help prevent burnout among employees—consider what steps you can take to ensure that employees know their time is valued (and, referring to the point above, take care to avoid contacting employees while on holiday unless necessary).
Ultimately, recognizing employees’ need to disconnect from work and enjoy their personal time is critical for Ontario employers who want to cultivate a positive and sustainable workplace culture.
Ottawa Employment Lawyers Advising Employers and Representing Employee Rights
At Tierney Stauffer LLP, our experienced employment lawyers represent employers and employees. We can assist with various employment-related issues, from reviewing new employment contracts to helping employers manage their liability exposure.
We focus on finding effective solutions for employees and employers at every stage of an employment relationship. Our lawyers have extensive experience in litigation, mediation, and arbitration, enabling us to easily identify the most efficient path to resolution for our clients. To schedule a consultation with a team member, call us at 1-888-799-8057 or contact us online.