Lack of details in Ontario's 'right to disconnect' policy gives employers full discretion: KPMG Law

Partner Richelle Pollard says similar legislation could apply to federally regulated workplaces

Lack of details in Ontario's 'right to disconnect' policy gives employers full discretion: KPMG Law
Richelle Pollard is an employment and labour lawyer and partner at KPMG Law

As workplaces with 25 employees or more prepare to implement Ontario’s new “right to disconnect” law on June 2, Richelle Pollard, partner at KPMG law, says the lack of detailed requirements as to what is to be included in the policy gives employers the discretion to determine how broad or narrow the policy should be.

When the Ontario government passed the Working for Workers Act (Bill 27) which requires employers to establish a policy about disconnecting from work, in December of last year, Pollard says employment lawyers anticipated that there would be further regulations setting out policy requirements. However, the government provided no extra guidelines except that employers implement the policy by June 2 and distribute it to employees within 30 days

Studies have shown that employees ultimately want autonomy in structuring their day, and Pollard says employers are considering implementing a broader policy term to allow for such autonomy. Rather than having set hours for employees to disconnect, she says many employers are choosing to keep the policy broad, so employees have the autonomy to decide when to disconnect, within the limits of operational and business needs. 

The ability to disconnect from work and a corresponding disconnecting from work policy is important, mainly because, due to the pandemic, people are working more and not taking breaks because it feels easier to stay on a computer when sitting at home, Pollard says.

How the policy looks, what it says, and how it is implemented is pretty much at the employer’s discretion, and Pollard says that employers can amend their policy as time passes but must provide a copy of the changed policy to employees.

Some employers might consult with employees about the policy to convey that they take seriously employees’ ideas and concerns. However, Pollard says sometimes that may overcomplicate things.

She says employers are urging employees to disconnect from work while emphasizing that there would not be any reprisals against an employee for seeking to disconnect.

“Rather than saying you’re going to disconnect between these hours, employers are saying we are encouraging you to disconnect during non-active work hours, and that changes from person to person.”

The legislation does not create a right to disconnect; therefore, Pollard says employees cannot make a complaint to the Ministry of Labour about an employer’s breach of the policy.

“The only basis an employee could initiate a complaint is to say that the employer did not have the policy in effect because, truthfully, in this situation, the only real requirement that exists is to have that in place by June 2.”

She says the policy requirement does not change the existing provisions in the employment legislation regarding hours of work, overtime, and rest periods.

“Individuals are still entitled to their ordinary periods of rest, so this is just an encouragement that people take that time to disconnect from work, which could change depending on what the person is doing and when they’re doing it.”

Pollard says employees have no independent right in terms of the disconnecting from work and that an employer’s failure to implement a right to disconnect policy would not work as a standalone basis in a lawsuit but could help strengthen a worker’s complaint before the Ministry of Labour or in court.

 “If someone is going to come forward and allege that their employment was constructively dismissed because they were harassed or mistreated by the employer, one of the things that they may rely upon to bolster that claim is that the employer didn’t respect my right to disconnect, and I was constantly working.”

Pollard says employers should be aware of the potential for similar legislation at the federal level to apply to federally regulated workplaces as the federal government recently consulted with stakeholders to create a plan similar to Ontario’s disconnect from work requirements.

She says the Federal Minister of Labour received the Right to Disconnect Committee report with their final recommendations on Feb. 10.

“We’re yet to see what’s going to come from that recommendation report, but some of the things that the committee agreed upon were that establishing a positive work-life balance was a goal for employers and workers and that they recognize the need for flexibility.

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