Many Ontario employers were required to have a right-to-disconnect policy by the beginning of this month, but experts say the vague legislation might not stop the after-hours emails and calls as readily as some employees might hope.
The plan was conceived in the depth of the pandemic when many Ontarians began working remotely. Advocates hoped the provincial government’s right-to-disconnect policy, which forms a section of the Working for Workers Act, would address work-life balance.
Employment lawyers and human resource management professionals say it’s a positive first step and may contribute to shifts in some work cultures, but many say it relies too much on a good employer to get it right.
“The legislation is quite toothless,” said Matthew Fisher, a partner at Lecker & Associates Law who specializes in employment law. “What it really does is it requires employers of a certain size in certain circumstances to make a policy,” he added.
“The problem is they are relying on the good faith of employers…. There is nothing in the legislation that requires the policy to be reasonable.”
June 2, 2022, was the deadline for Ontario employers with more than 25 workers to have written policies in place. They’re supposed to detail how employees can disengage from work-related communications, including emails, audio and video calls and sending or receiving messages when they are meant to be off the clock. The policy may or may not include details related to time of day, the types of communication that are acceptable and who can contact an employee out of work hours.
Fisher says hypothetically a cynical employer could make a policy saying employees “have a right to disconnect between four and 4:15 am on Tuesday.”
A win for good employers?
Erin Bury is the CEO of Willful, an Ontario startup that helps people with estate planning online.
Bury says she pro-actively created a right-to-disconnect policy just before the Ontario legislation passed. Her company falls just below the 25 employee cut-off, but is growing, meaning it may be required to have one soon.
“Prior to the pandemic, we had an office in downtown Toronto, and we were very much an in-office culture … It was pretty easy to disconnect, because you would just physically leave the office,” she said.
But the company is now operating remotely with some employees in other time zones, meaning someone in British Columbia might send an email to someone in Toronto after normal working hours, she says.
The company’s right-to-disconnect policy encourages employees to schedule emails, turn off their chat notifications on their phones after hours and consider sending a video message instead of holding a late meeting, she says.
The policy also indicates that while there might be times when tasks are required after hours, if it becomes a pattern there is a recourse for the employee, whether it’s management addressing the cause or offering lieu time.
Bury says Willful’s policy has been positively received. She would have liked to have seen the government’s policy as mandatory for smaller firms, noting the startup culture can lead to overworked employees.
The confusion around the legislation has broadly led to positive action by good actors, says Steph Little, a senior human resources consultant with Bright + Early, a Toronto-based HR consultancy company.
Good employers, including some who have fewer than 25 employees and don’t legally need a policy, were encouraged by the discussions around the topic, she says. Employers wanted “to be more proactive, to get ahead of the policy and put things in place to make sure people can disconnect.”
Her clients have reported better productivity and organization from managers and employees alike when people have realized they must get it all done within business hours.
Spelling out work norms that come off as sound and desirable is “really attractive for candidates and appreciated with existing employees as well,” she said.
Too much at employer’s discretion
The problem is not all companies will be keen to go beyond what the law requires, which isn’t much, says Daniel Lublin, an employment lawyer and founding partner at Whitten & Lublin, based in downtown Toronto.
“Few companies are going to shackle themselves with an inability to call on employees for urgent situations after hours,” he said.
“It’s fake to call it a right to disconnect,” he said, because so much comes down to the employer’s discretion of whether they want that to be the case.
“It really comes down again, to whether an employer has made a choice to actually create a substantive right or not,” he said.
But for firms that do embed the right to truly disconnect into their policy, it does mean employees could go to the Ministry of Labour if they were admonished, suspended or terminated for failing to respond to something outside of the timeframe spelled out in the policy.
Nita Chhinzer, a professor of HR and business consulting at the University of Guelph, says companies that traditionally violate employment law “are not suddenly going to start abiding by this one law when they haven’t been abiding by others.”
Predatory employers will continue to do what they like and “lead by a culture of fear,” Chhinzer says.
However, “it’s going to positively provide employees with a path of correction,” and the intent to reduce burnout that comes from prolonged stress is a very good thing, she says.