After-Hours Emails and Ontario’s Disconnecting From Work Rules

Written on behalf of Peter McSherry

Email, Teams, Slack, and smartphones have made it possible for employees to remain connected to the workplace long after they have left the office. For employers, that connectivity can be useful when operations extend beyond traditional business hours, employees work remotely, or teams collaborate across different time zones.

At the same time, an email sent at 9:00 p.m. can raise questions about whether the recipient is expected to respond immediately, whether reviewing the message amounts to working time, and how the communication fits within the employer’s disconnecting-from-work policy.

What Does “Disconnecting From Work” Mean in Ontario?

Ontario’s Employment Standards Act, 2000 (ESA) defines “disconnecting from work” as not engaging in work-related communications, including emails, telephone calls, video calls, and sending or reviewing other messages, so that an employee is free from performing work.

The legislation does not, however, establish a general statutory right for every employee to ignore work communications outside regular working hours. Instead, certain employers must prepare and distribute a written policy addressing disconnecting from work. The employer largely determines what that policy says, subject to the ESA requirements and any other applicable employment standards.

This distinction matters when employers consider how their policy should address emails sent outside an employee’s ordinary schedule.

Which Ontario Employers Need a Written Policy?

An employer that employs 25 or more employees in Ontario on January 1 of a given year must have a written disconnecting-from-work policy in place before March 1 of that year. The policy must apply to all of the employer’s Ontario employees.

Although every employee must be covered, an employer does not necessarily have to impose identical rules across its workforce. The policy may establish different expectations for different categories of employees, provided that all employees are addressed.

For example, the realities of an executive role, an on-call IT position, a customer service operation, and an administrative position may differ substantially. Ontario’s guidance expressly contemplates policies that establish different expectations depending on circumstances such as the time of day, the nature of the communication, or the person contacting the employee.

Are Employers Allowed to Send Emails After Hours?

Ontario’s disconnecting-from-work provisions do not simply prohibit employers, managers, or colleagues from sending emails outside regular working hours. Instead, the written policy can address the employer’s expectations concerning whether employees are expected to read or respond to emails, telephone calls, or other communications after their shifts.

An organization might, for example, permit managers to send messages whenever convenient while stating that employees generally are not expected to monitor their inboxes until their next scheduled working period. Another workplace may require certain employees to remain reachable during defined on-call periods.

The important distinction is often between sending a communication and expecting the recipient to perform work because of that communication.

The 9:00 P.M. Email Can Still Become Working Time

Disconnecting-from-work policies operate alongside the ESA’s other employment standards. Ontario’s guidance notes that where an employee performs work, including reviewing or drafting emails, the time spent performing those activities will generally be considered working time under the ESA. This can be the case even when the employee is at home, and even where a workplace policy says that employees are not supposed to work from home after their regular shift.

For employers, the issue is therefore broader than whether an after-hours message was sent. The circumstances may include how often employees respond outside scheduled hours, whether responses are expected, how long the work takes, and what other ESA rules apply to the employee.

Clear Expectations Can Reduce Ambiguity

A disconnecting-from-work policy gives employers an opportunity to define how employees should treat communications received outside their normal working hours.

For example, a policy may distinguish between routine and urgent communications. Employees could be informed that ordinary emails sent after hours do not require a response until the employee’s next scheduled work period, while specifically designated employees may have different responsibilities when they are on call.

Employers may also address practices such as scheduled email delivery, delayed-send features, out-of-office notifications, voicemail messages, escalation procedures, and methods for identifying genuinely urgent matters. The specific approach will depend on the workplace, workforce, industry, and operational requirements.

Consider the Difference Between Flexibility and Availability

Hybrid and remote work can make after-hours communication more complicated. An employee who leaves early for an appointment and completes work later in the evening may welcome flexibility that allows them to respond to messages at unconventional times. Another employee may work a conventional schedule and interpret a late-night message from a manager as something requiring an immediate response.

These different working arrangements can coexist, but employers may wish to ensure that flexibility is not unintentionally interpreted as universal availability.

Policies can therefore clarify whether employees working flexible schedules are expected to communicate their availability and whether messages sent outside another employee’s working hours require an immediate response.

Managers Play an Important Role

A written policy may say one thing while everyday workplace practices communicate something different. For example, a policy might state that employees generally do not need to respond after hours. However, if supervisors routinely send late-night emails marked urgent, follow up when employees do not answer, or praise employees for being constantly available, employees may perceive a different practical expectation.

For that reason, disconnecting-from-work policies can involve more than distributing a document. Employers may also consider how managers communicate expectations and how after-hours work is handled operationally. Consistent practices can make it easier for employees and supervisors to understand when communication requires action and when it can wait.

Remember the Administrative Requirements

Employers subject to Ontario’s disconnecting-from-work provisions also have several administrative obligations. The written policy must state the date it was prepared and the date of any changes. Employees must receive a copy within 30 calendar days after the policy is prepared or amended. New employees must also receive the applicable policy within 30 days of becoming employed.

Employers must retain copies of required disconnecting-from-work policies for three years after each policy ceases to be in effect.

These requirements may make periodic policy review useful, particularly where an organization’s working arrangements, communication platforms, staffing levels, or after-hours operational needs have changed.

A Policy Does Not Replace Other Employment Standards

Disconnecting from work should not be viewed in isolation. Ontario expressly notes that employers remain responsible for compliance with other applicable ESA requirements, including rules relating to hours of work, eating periods, vacation pay, and public holidays. Depending on the circumstances and applicable exemptions, overtime requirements may also be relevant when employees perform work outside their regular schedule.

An employer’s own policy may also create obligations beyond the minimum policy requirement in the ESA. Ontario’s guidance indicates that policy terms may, in some circumstances, amount to a greater right or benefit under the ESA or otherwise become contractually binding.

Employers may therefore benefit from considering how the wording of a disconnecting policy interacts with employment agreements, remote-work policies, overtime procedures, on-call arrangements, and existing workplace practices.

After-Hours Communication Is Ultimately About Expectations

Ontario’s disconnecting-from-work legislation did not eliminate the 7:00 p.m. email. Instead, it placed greater emphasis on employers documenting how work-related communications are handled when employees are otherwise away from work.

A central question is often not simply whether someone can send an email after hours. It is whether employees understand what they are expected to do when that email arrives.

A disconnecting-from-work policy that reflects the organization’s actual operations can help establish those expectations while providing a framework for supervisors, employees, remote workers, and on-call personnel to navigate an increasingly connected workplace.

Questions About After-Hours Work or Unpaid Working Time in Guelph? Contact Peter A. McSherry Employment Lawyer

If you are regularly expected to read or respond to emails, Teams messages, calls, or other work communications outside your scheduled hours, you may have questions about how Ontario employment standards apply. Peter A. McSherry Employment Lawyer can help employees understand their rights regarding after-hours work, working time, overtime pay, hours of work, and disconnecting-from-work policies.

Our firm assists clients with concerns relating to a broad range of employment issues, including wrongful and constructive dismissal, discipline, and workplace human rights. To schedule a confidential consultation, please contact us online or call 519-821-5465.