Employers Need More Guidance on the Right to Disconnect

Written on behalf of Peter McSherry

With the rise of remote work, more and more employers transitioned to a remote work model for all employees. Although many companies in Ontario are inviting their employees back into the office, remote work remains for many employers who are opting to instate a hybrid work environment. In hybrid workplaces, employees split their working time between the office and their homes.

Although the advantages of remote work are numerous, some areas of concern have arisen over the past few years. At home, the lines between work and home life are blurred, posing challenges for cultivating a healthy work-life balance. With the ease of work being just steps away from the bedroom, some may feel pressured to remain available after usual work hours. These are just some examples of why the Government of Ontario recently enacted legislation to help guide employers and employees working from home in this “new normal.”

Ontario’s Working for Workers Act puts employees first

The previous Working for Workers Act that came into force on October 25, 2021, required both employers and employees to respect the rights of workers to disconnect from work communications during specified periods each day. This would be done through a mandatory written policy describing the employer’s expectations about disconnecting from work. Ontario employers with more than 24 employees had until June 2, 2022, to have this policy in place.

Ontario’s new Working for Workers Act came into force on April 11, 2022. Through this legislation, the Government of Ontario also enacted the Digital Platform Workers’ Rights Act. This legislation establishes rights for workers who perform work on a digital platform. It applies to all workers, regardless of whether they are an employee or independent contractors. A digital platform is defined as “an online platform that allows workers to accept or decline digital platform work.” Digital platform work is “the provision of for payment ride share, delivery, courier or other prescribed services by workers who are offered work assignments through the use of a digital platform.” With the rise of gig workers since the start of the pandemic, this was a necessary move to ensure certain employees are not being taken advantage of.

The Digital Platform Workers’ Rights Act establishes seven rights for digital platform workers:

• The right to information
• The right to recurring pay period and payday
• The right to minimum wage
• The right to amounts earned and tips and other gratuities
• The right to notice of removal
• Dispute resolution rights
• Reprisal rights

What is the right to disconnect?

The term “right to disconnect” has been linked to the Working for Workers Act of 2021, although what exactly this means remains unclear. The policy requires employers to give their employees the option of turning off their devices and notifying them when they must be available. It also requires employers to respect an employee’s decision to not respond to messages outside of working hours, with some exceptions.

Describing it as a “right” perhaps elevates the new legislation higher than intended. The idea behind disconnecting from work involves being allowed to not engage in work-related communications to provide some free time in lieu of added work performance.

Employers unhappy with Ontario’s education on ‘right to disconnect’

Although the Working for Workers Act of 2021 is in force at the time of publishing, many employers are dissatisfied with the lack of education on how to implement it. Employers are given the discretion to implement the law how they see fit, but there are questions with respect to how narrow or broad the policy should be. There is also little guidance on what recourse employees can take if employers breach their “right” to disconnect.

The vagueness of the law poses further challenges for employees in very demanding jobs. If an employer’s right to disconnect policy limits work to a specific time period during the day, some employees may miss time-sensitive messages that will affect the company as a whole. If an employer is more flexible and allows employees to work as they need, it may be difficult to maintain consistent communication throughout the day. 

That said, vagueness can breed flexibility, which is what is most needed in today’s seemingly ever-changing work environment. A one-size-fits-all approach simply cannot work for all businesses. What works for a lawyer is going to look different for a schoolteacher, for instance.

Advice for disconnecting from work

Even if an employer provides employees with guidance on when to disconnect, employees may still feel tempted to work during off-hours. Creating work-life balance can be harder for gig workers that fall within the meaning of the Digital Platform Workers’ Act as work may not be as steady, prompting those workers to go overboard collecting hours. 

Here are some final thoughts on how workers can take to cultivate work-life balance for themselves:

• Unplug daily. When work is finished, turn off your work phone, computer, and other devices. Take a break by picking up a book, meditating, or listening to music.
• Make time to exercise. The benefits of exercise are numerous. Not only is it great for your body, but it’s also a wonderful way to reduce stress, improve sleep quality, boost your mood and energy levels, and improve focus and memory.
• Set boundaries. Setting boundaries with your work is a lot like setting boundaries with anyone else. You need to be direct about what you need and want.
• Define your priorities. Figure out what’s most important to you, and then prioritize that. This does not mean prioritizing your day-to-day tasks, although that’s important too. But also consider prioritizing the things that matter most in your life and work.

Contact Guelph Employment Lawyer Peter A. McSherry for Advice on the Right to Disconnect

Peter A. McSherry Employment Lawyer assists employees and employers on termination, wrongful dismissal and severance issues. We regularly assist employees and provide guidance during difficult times. For employers, we can help you understand your legal obligations and provide advice on managing the legal and reputational risk that occurs when making these difficult decisions that impact employment.

Contact us online or by phone at 519-821-5465 to schedule a consultation.