During the pandemic, on top of many other day to day changes, we witnessed a shift in working environment. With the onset of remote work, a new challenge emerged: when exactly are we “done” working? With emails and messages always within reach, many found it difficult to disconnect from work. In December 2021 Ontario attempted to reconcile these issues with the “right to disconnect policy” which was enacted into the Employment Standards Act (ESA). While the policy tackled this growing concern, many found it insufficient in practice.
Understanding the Right to Disconnect
The amendment became applicable in June 2022, mandating that employers have a written policy on disconnecting from the workplace. This however only applied to employers (except the crown employees) with more than 25 employees on January 1st of any given year. The ESA defined “disconnecting” as “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”. This list, however, is not exhaustive, and other types of work communications cam also be included in this policy at the employer’s discretion.
Broad Brushstrokes: How the Right to Disconnect Misses the Mark
Unfortunately, this law creates no substantive guidelines for employers, leaving it entirely to the employers to decide how they want to implement it. One main loophole to this policy is that “if the employer’s policy on disconnecting from work does not create a greater right or benefit, the policy is not enforceable under the ESA”. Daniel Lublin, a founding partner at Whitten & Lublin, has further stated that the law “creates nothing more than an obligation for an employer to have a policy”. This means that employers have the choice to create a substantive right to disconnect, which Daniel Lublin believes they have no reason for. Furthermore, Jared Lecker, an associate with Lecker & Associates, has stated that the law was too broad, and that a company could in theory be complying by merely giving their employees one minute to “disconnect.” In the end, the law may not do much to protect employees' work-life balance, as it simply requires employers to have a policy in place without ensuring that it offers meaningful relief.
Enforcing the Right: A Policy with No Real Power
The right to disconnect may be in the ESA, but there is no penalty for failing to comply with it. For example, if an employer simply establishes a minimum right to disconnect policy, they will not be penalized for failing to abide by the right to disconnect. Policy consultant Fife Ogund has also issued an opinion, stating that “as it stands, the only thing that can happen under Ontario’s law is that a company can be held liable for not having a plan. In a sense, it presents as largely cosmetic”. Thus, although the policy takes strides in a positive direction for workers’ rights, without meaningful sanctions, deterrence is not possible, and the policy is essentially useless.
The Risk of Disconnection: Could the Policy Be Detrimental to Workers?
One meaningful fear that employees have is how using their right to disconnect could impact their standing at the company. Many fear not answering a call or email outside of hours could set a bad precedent and ruin their chances at a promotion or raise. There is a risk, Jared Lecker at Lecker & Associates admits, that although you cannot be fired for using your right, it could still be used against you if there is another reason for constructive dismissal. Lastly, the policy may directly interfere with flexible hours. Many employers allow their employees to make up for missed work time during the day by finishing it in the evening. This allows employees to perform day to day tasks that interfere with their work life. A right to disconnect policy could encourage employers to stop working outside of work hours and thus, give up some of the benefits from flex time.
To conclude, while the "right to disconnect" policy in Ontario is a step in the right direction, it falls short in practice. A lack of clear rules and penalties results in employers putting in place policies that do not make any meaningful changes. With a lack of true consequence for employers who do not comply, the right to disconnect law struggles to become little more than a box to check rather than true preservation of employees’ work-life balance. Additionally, the fear that using the right to disconnect can hurt career advancement, as well as the potential impact on flexible work arrangements, further showcases the complexity of integrating a rule which necessitates the balance of employee rights and workplace culture. For this policy to make a positive difference, clearer guidelines and stricter implementation is required to truly push employers to support their employees’ work-life balance, instead of just meeting the bare minimum. Only then can we hope to see a real shift in how work is done—one that respects both employees’ time as well as their mental health outside of the office.
-SS
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