Canada: The Right to Disconnect Q&A

The “right to disconnect”, or the ability of workers to disconnect from work-related communications and activities outside their normal working hours, has become a pressing issue following the COVID-19 pandemic and the widespread shift to remote and flexible working. While some workers may appreciate the increased autonomy and flexibility that remote working offers, others may face challenges in maintaining a healthy work-life balance, managing expectations and boundaries, and avoiding burnout and stress.

There are various approaches to the right to disconnect across jurisdictions. For example, while some jurisdictions rely on codes of practice, others address the right to disconnect via legislation, or restrict the right to teleworkers/remote workers only.

With different jurisdictions adopting or considering various legal and policy responses to address the right to disconnect, the below provides an overview of the current position in Canada.

This Q&A is part of a series providing an overview of the current position and developments in 15 countries, highlighting the main challenges, opportunities, and best practices for employers and employees. This series includes contributions from Mayer Brown’s Employment & Benefits team and local counsel.

1. Is there a right to disconnect in your jurisdiction and, if so, when did it come into force?

Jurisdiction over employment law in Canada is divided between the provincial legislatures and the federal Parliament. The provinces have jurisdiction over employment within their borders, while the federal Parliament has jurisdiction over employment that is related to a subject over which Parliament has constitutional authority. Federal jurisdiction generally applies to works or undertakings of national scope or importance. The federal Parliament also has legislative jurisdiction over Canada's three territories: the Northwest Territories, Nunavut, and Yukon. Most employment relationships in Canada are provincially governed.  

Ontario is currently the only Canadian jurisdiction with a right to disconnect. It came into effect on June 2, 2022.  

2. Is the right governed by legislation, a code of practice or both?

The right is governed by legislation, specifically the Ontario Employment Standards Act, 2000, SO 2000, c 41 (the “ESA”).

3. Do all employees have a right to disconnect? 

The requirement relating to written policies on disconnecting from work applies to all employees covered by the ESA at every level of the organization, including management and executives, except employees of the Crown, a Crown agency or an authority, board, commission or corporation whose members are all appointed by the Crown and their employees.

4. Are all employers obliged to provide the right to disconnect?

The Ontario rules concerning disconnecting from the workplace apply to employers with 25 or more employees on January 1 of any year. The Crown, a Crown agency or an authority, board, commission or corporation whose members are all appointed by the Crown and their employees are excluded.

5. What are the obligations on the employer?

Employers that employ 25 or more employees are required to have a written policy on disconnecting from work in place for all employees. They are also required to provide a copy of the written policy to all employees.

The legislation does not create a new right for employees to disconnect from work and be free from the obligation to engage in work-related communications. Rather, it requires an employer to have a written policy on “disconnecting from work,” which is defined to mean not engaging in work-related communications, including emails, telephone calls, video calls or sending or reviewing other messages, to be free from the performance of work.  

The employer must include the day, month and year on which the policy was prepared and the date any changes were made to the policy. 

Other than these requirements, the legislation does not specify the information the employer must include in the policy. The employer determines the content of the policy itself.

The employer can have a single policy that applies to all employees or its policy can contain different policies (either in a single document or in multiple documents) for different groups of employees.

6. What happens if an employer fails to comply with its obligations?

An employer who fails to comply with its obligations to have a policy may be issued an order to cease contravening the ESA and take action to comply with the ESA’s requirements.

If a notice of contravention is issued, a monetary penalty may be assessed in the following amounts: CAD250 for a first contravention; CAD500 for a second contravention of the same provision within a three-year period; and CAD5,000 for a third or subsequent contravention of the same provision in a three-year period. These penalties are multiplied by the number of employees affected.  

7. Have there been any reported cases on the right to disconnect?

There are no reported cases on the right to disconnect.

8. What are the benefits and challenges of the right to disconnect in practice? 

The main benefit of a right to disconnect policy is clarification of the employer’s expectations concerning work-related communications during non-working hours. A right to disconnect policy can also increase awareness around employee concerns that they must always respond to after-hour work-related communications.

A challenge in practice for employers is that a written policy can create rigidity in workplaces that depend on employee flexibility.  

Worker advocates take the position that Ontario’s right to disconnect provides little protection to employees as it requires the employer only to promulgate a policy stating its expectations around work-related communications outside of working hours, but does not create an actual right to disconnect. They argue that the positive impact on work-life balance is negligible.

9. Has the right to disconnect had a significant impact on the workplace since it came into force? 

The impact has not been significant, largely because the law in Ontario, the only Canadian jurisdiction with right to disconnect legislation, does not create a new “right to disconnect” from work and be free from the obligation to engage in work-related communications. Instead, employers are required to make and distribute to employees a written policy on “disconnecting from work”.  

10. Are there any changes on the horizon relating to the right to disconnect in your jurisdiction?

On June 20, 2024, Bill C-69, the Budget Implementation Act, 2024, No. 1, received royal assent. With the passage of this legislation, the federal government will establish a right to disconnect for workers in federally regulated industries similar to the Ontario model. This provision will come into force at a later date, not yet announced. As currently drafted, the new law will require employers to bring into effect a policy that includes the following elements:

• A general rule respecting work-related communication outside of scheduled hours of work, including the employer's expectations and any opportunity for employees to disconnect from means of communication.
• Any exceptions to the rule and their underlying rationale.
• The effective date of the policy.
• Any other elements that may be prescribed by regulation.

Other requirements concern policy updates following consultation with employees, communicating the policy to employees and record-keeping.

The employer may exclude from the application of the policy any employees who are exempted from the overtime and hours of work provisions of the Canada Labour Code such as managers or superintendents or exercise management functions, and members of certain professions.

AUTHOR FROM MCCARTHY TETRAULT
Margaret Gavins, Counsel