Employers may need years to figure out how to enforce a right to disconnect policy properly: lawyer

In some jobs, it is difficult to restrict email responses after 5 pm, says employment lawyer

Employers may need years to figure out how to enforce a right to disconnect policy properly: lawyer
Bettina Burgess is a partner at Gowling WLG

Employers are scrambling to prepare for Ontario’s Working for Workers Act (Bill 27) in June, which gives employees a right to disconnect from the office. Bettina Burgess, a partner at Gowling WLG, says it will be a slow cultural shift and may take many years before employers figure it out.

“I do not think we’re going to see a switch on Jun. 2 and magically have this figured out,” Burgess says.

Ontario’s Working for Workers Act was introduced in Oct. 2021 and received Royal Assent on Dec. 2. Law Times previously reported that the Minister of Labour, Training and Skills Development, Monte McNaughton, said the changes would “rebalance the scales and put workers in the driver’s seat,” attract talent to the province and ensure “labour laws keep pace with the acceleration of new technology, automation and remote work.”

Among its provisions, the law requires employers with 25 employees or more to have a written policy about employees disconnecting after work. However, Burgess says it will take some time for a right to disconnect to become more acceptable in some jobs. “If I were to say to my clients that I take every Friday off and I’m completely unavailable; for the first few months, I’m going to have clients who do not like that because they’re used to getting me every Friday.”

She says that employers must be creative when drafting a right to disconnect policy for very demanding jobs. “There are positions like management CEOs and tech, where it’s a bit more challenging to say, as of five o’clock, you no longer have to respond to emails.”

The legislation does not provide many guidelines on drafting a right to disconnect policy. Burgess says there is much stress and anxiety about making it work in a remote and hybrid work environment. However, she says it is beneficial for employers who want to do the bare minimum and meet the strict statutory requirements. “They can have a less than a page policy and will have met the pure statutory requirements.” 

However, she says that employees could resent employers who do not help them disconnect from work. 

Burgess is a practitioner in employment and workplace privacy law with over 20 years of experience and helps local and global companies manage their employment and workplace legal issues. She is one of the speakers at the Canadian Lawyer’s Employment Law Masterclass on Apr. 28, presenting “Deciphering the implications of the Working for Workers Act for employers.”

Burgess says that the right to disconnect could benefit workplaces that think thoughtfully about their employees and put a policy that addresses everyone’s rights.

Working 24 hours a day, seven days a week and always being available has been a badge of honour for a long time, and that has to change, she says. “Everyone from the lowest level employee to the CEO needs time away from work.”

She says the right to disconnect policy prevents her from reaching out to employers outside work hours. For example, while working on the weekend, she wanted to send an email to a colleague but stopped herself.

“I stopped myself because I thought, ‘I’m working right now, but that doesn’t mean my colleague is, and I need to let her enjoy Sunday’,” she says. “Getting employees and management to start thinking about things like that is why this legislation will be good.”

Burgess says it will be challenging for workplaces to have a “one-size-fits-all” right to disconnect policy. However, thinking about job classifications or the email sender can help set parameters around receiving information and when not to respond. For example, Gowling drafted a checklist for clients to access the legislation and consider questions, such as when to not respond to customer emails or communications from peers.

The legislation does not create new employee rights, so whether a policy states that employees can disconnect after 5 pm does not make them entitled to special premium pay if they work after hours, Burgess says.

“There’s nothing in the legislation that requires employers to pay employees’ special premium pay. Employers can do that but are not obligated.”

The Working for Workers Act also prohibits non-compete agreements, except for certain c-suite executives and when the business is being sold.

Non-compete agreements restrict employees from leaving a company from taking new jobs within the same field of business. Burgess says prohibiting it could cause many problems because there are occurrences where an employee has a non-competition clause in their equity agreement but not in the employment contract.

“That’s a problematic area that hasn’t been appropriately addressed in the legislation, and it needs to be. So, it either has to get fixed, or we need a decision from a court very quickly interpreting that.”

Employees who signed an employment contract after Oct. 25, 2021, must not have a non-competition provision. However, “employers need to remember that even for employees who existed before Oct. 25, if they change the terms of an employment after Oct. 25, they better reconsider taking the non-comp out of the agreement because they may be violating the act if they leave it in.”

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