Work. When does it end? The pandemic-induced switch to remote, hybrid and flexible working brought long-sought-after flexibility for workers. But there’s a dark side. From taking calls while walking the dog to dealing with the laundry pile during conference calls, ‘always-on’ working patterns have blurred the lines between work and home and it’s leading to extreme levels of stress and burnout, in turn leading to employee turnover.
To help workers switch off from work after hours, the Ontario government has passed new ‘right to disconnect’ legislation, placing new obligations on employers. So, what are those obligations, why are they coming and how will they work? Here’s what every employer needs to know to get ahead of the changes.
What’s the context behind this new law?
The amendment is part of a broader suite of workers’ rights legislation, The Working for Workers Act 2021, and will work hand in hand with existing rules around working hours, break times and workplace safety. The legislation aims to further position Ontario as a great place to live and work, while paving the way for workers to have the right to disconnect from work-related communications across Canada. (The Canadian government is already exploring extending the right to disconnect to federal workers, for example.)
Why are these changes coming now?
According to the Minister of Labour, Training and Skills Development’s statement, “Through the passage of this legislation, Ontario is ensuring our labour laws keep pace with the acceleration of new technology, automation, and remote work.”
The surge in remote and flexible work has blurred the lines between work and personal life. Our tech-fueled lifestyles have made it easy to stay accessible at all hours. While work-from-home flexibility can be an advantage for employees who want to be able to pick up or drop off the kids, start dinner or throw a load of laundry in during the day, it can equally present challenges on an employee’s ability to separate work life from home life, which is why the Ontario legislature is keen to upend the ‘always-on’ trend.
What’s in Ontario’s new ‘Right to Disconnect’ legislation, exactly?
The amendment requires all employers in Ontario with 25 or more employees to have a written policy on disconnecting from work. Within the new legislation, the right to disconnect is defined as “not engaging in work-related communications, including emails, telephone calls, video calls or the sending or reviewing of other messages, so as to be free from the performance of work.” The new law applies to all employees in Ontario, from the executive level to the shop floor – including long-term employees, part-time workers and everything in between. Temporary workers from staffing agencies are not included as part of the 25-employee threshold for organizations, as the law considers these workers as the agency’s employees. Thus, temporary employees would be covered by their staffing agency’s right to disconnect policy.
Although all workers must be covered by a written ‘disconnecting from work’ policy, what’s in that policy can differ between employee cohorts at the same company. The important thing is that all employees must have written guidelines clearly stipulating the company’s position on disconnecting from work as it applies to them.
What should these new disconnecting from work policies include?
The lawmakers behind the legislation left it ‘deliberately flexible’ to allow employers to tailor their policies to the needs of their specific workplace. Employers should develop policies that work for everyone while respecting health and safety and working hours legislation.
Of course, normal work hours differ industry by industry. Gig workers have a very different routine than traditional 9-to-5 office workers, for example. It’s up to employers to craft their policy in such a way that allows space for workers to disconnect within their field.
Based on individual company requirements, policies may include:
- Rules around out-of-office and working hours notifications and voicemail messages (so clients and colleagues know when they can expect a response and when they cannot).
- Guidelines around hybrid-work models regarding when and why employees must report to work in person and/or be available online.
- Expectations around different situations to read or respond to work-related communications based on time of day, subject matter or sender (client, colleague, etc.)
Employers should note that any employee rights and benefits included in written policies that are greater than those required by the new legislation may be enforceable by law.
When does the new law come into effect?
The 25-employee threshold applies to the employers’ headcount numbers as of January 1 each year.
In 2022, all impacted employers must have their policies in place on June 2, 2022. In 2023 and onwards, employers must determine their employee count on January 1 of that year, and then, if required, have their policies in place before March 1 of that year.
For example, if on January 1, 2022 an employer had 20 employees, and then hired 10 more in July 2022, they would not require a right to disconnect policy that year. However, come January 1, 2023, the employer’s headcount is now 30 and a policy needs to be in effect by March 1 of that year.
Has this been done before?
Yes, we’ve seen similar legislation internationally. In 2017, France was the first national government to enforce 'right to disconnect' legislation. Since then, Belgium, Greece, Ireland, Italy, Portugal, Slovakia and Spain have enacted 'right to disconnect' codes, directives and laws, with several others set to follow suit. Last year, the European Parliament called for EU-wide legislation, although this hasn't happened yet. In Germany, leading companies like Volkswagen, Daimler and Siemens are driving the changes. And while Ontario is the first Canadian jurisdiction to enforce the 'right to disconnect,' other provinces will likely follow.
Has there been push-back?
Employers who oppose the legislation say it brings unnecessary red tape, especially for small businesses and firms working across multiple time zones. They argue that the bill is unworkably vague and will impede management oversight, hampering productivity. The bill has its critics on the employee side, too, who fear it will compromise the flexibility workers have only recently managed to negotiate.
Further, critics argue that the new law may disproportionately affect women. Women's careers have already suffered disproportionally during the pandemic due to their out-sized caring responsibilities and performance of more unpaid work. If 'disconnect from work' policies are too rigid, they could dampen women's career progression, especially if male colleagues are able and willing to forgo their right to disconnect when women are not.
What can employers do to draft an effective right to disconnect policy?
Even before the pandemic hit, employers were waking up to the fact that if they don't make employees disconnect, they may pay for it later via absenteeism, disillusionment and – ultimately – attrition. But this new law stands to accelerate that cultural shift away from workaholism and reinstate a healthy working culture where health matters and family comes first. At the very least, it will stimulate more discussions around the work our society values and how much of our lives we should invest in our jobs.
As always at Adecco, our advice to employers is to look after your people, treat them as individuals and support their mental health. When drafting a right to disconnect policy for the first time, we suggest employers:
- Avoid overly prescriptive blanket policies limiting employees' hours. These may do more harm than good for workers who appreciate flexibility.
- Pinpoint where your people are struggling to disconnect and develop tailored person-centric strategies to combat any blockers.
- Introduce flexible solutions that balance the need to disconnect with the individual needs of employees.
- Implement common-sense wellbeing measures, like encouraging employees to use all available vacation time and leave entitlement.
- Use tech to your advantage, like using email prompts to warn senders of the recipient's time zones or email signatures stating that messages do not require an answer outside of working hours.
Lasting change requires more than legislation. Real progress requires everyone to work together to build a healthier working environment. That means learning to prioritize health and wellbeing, respecting each other's boundaries and switching off when it’s time to switch off.
The right to disconnect in reality
Ontario’s legislation is brand new to the province, and as such, it will take some time to figure out how it translates from paper to the real world. Time will also tell how the Ministry of Labour enforces the legislation in the event employers don’t abide by their policies.
Although the legislation is a Canadian “first” and brings with it many unknowns, forward-thinking employers should consider the province’s newest mandate as an opportunity for candidate attraction.
According to Nicolette Mueller, Vice President and Associate General Counsel at Adecco,
“Employers can expect that the ‘right to disconnect’ will serve as a great incentive when it comes to hiring. A well-written, worker-focused policy that promises a fair and flexible work-life balance will serve as a tool to bring in talent in a tight labour market and during a worsening labour shortage.”
At Adecco, we understand the challenges of managing distributed teams in the face of ever-changing legislation, including the right to disconnect. We can help you build the workforce you need in this fast-moving market and ever-changing world of workforce legislation. Our staffing experts are ready to advise you – contact us today. To learn more about the latest workplace trends in Canada, subscribe to our Lēad blog.