The Right to Disconnect Advances for Bankers and Other Federal Employees

Written on behalf of Peter McSherry

Final Report of the Federal Right to Disconnect Advisory Committee

As the increase in remote work continues and technology facilitates constant communication, more employees are finding it difficult to disconnect from work. Governments across Canada and around the world are reviewing and updating their employment standards legislation to determine if new rights to disconnect can create a better balance for employees while still maintaining the flexibility and competitiveness of employers across a wide variety of industries.

This was the task assigned to the Right to Disconnect Advisory Committee (the “Committee”). The Committee was made up of members representing employers, unions and non-governmental actors in federally regulated workplaces. While federally regulated workplaces make up a small percentage of the overall economy, there are several major employers in the Guelph region from this sector, including: employers connected to air travel, banking, and cross-border truck driving.

The Employment Standards Act, 2000, covers provincially regulated employees and employers. We have previously covered the right to disconnect changes for provincially regulated workplaces here.

The Committee has now completed its review and released the Final Report of the Right to Disconnect Advisory Committee (the “Final Report”).

How Did the Committee Develop Its Findings?

The Committee was tasked with creating a Right to Disconnect that is not defined in the current employment standards legislation (the Canada Labour Code) and continues to develop in other jurisdictions.

In order to develop a foundation for their recommendations, the Committee met with experts on workplace rights and Canadian employment standards, experts from Germany and France who have developed their own workplace rights in this area, as well as representatives from federally regulated sectors, including representatives from the sectors mentioned above.

What is the Right to Disconnect?

The right to disconnect is a new concept that is still being developed. Developing a definition of the right to disconnect was one of the tasks the Committee was responsible for determining in the Canadian federally regulated workplace context.

The Committee determined that the right to disconnect has its origins in France’s revised employment standards from 2017. This change is designed to address the constant connectivity that smartphone technology allows. The Final Report includes a description of the potential impact of this degree of connectivity:

Cognitive and emotional overload from “hyper-connectivity” has been noted to have negative effects. This includes a sense of fatigue due to the “psychosocial risk” of being constantly connected. This can have both physical and mental health effects.

While the concept is still being developed, the right to disconnect is essentially the right for employees to not participate in workplace communications outside of working hours.

What Were the Committee’s Recommendations?

The Committee was unable to develop a consensus on all of the outstanding issues and develop a single recommended approach to a right to disconnect. However, there was a consensus on a limited number of issues. Specifically, the Committee agreed and recommended that the Government of Canada should collect more and better quality data on hours of work and disconnecting issues and should facilitate the sharing of best practices. From a substantial perspective, the Committee recommended that any right to disconnect should still allow for employers to contact employees in emergency situations and to communicate pressing health and safety information.

On most of the substantive issues, there was a split between the employer recommendations and the union/non-governmental organization recommendations.

The Employer Recommendations

The employer recommendations centred on the view that there are already numerous protections for federally regulated workers within the Canada Labour Code as it is currently written. While those rights are not expressly called the right to disconnect, employees have rights to:

• Overtime pay;
• Refuse overtime work for specific reasons (for example, family responsibilities);
• Minimum of eight hours of rest between shifts;
• Minimum of one day of rest per week;
• Request flexible work arrangements;
• Advance notice of schedules and changes to schedules; and,
• Maximum hours of work requirements.

In light of the above rights, the employer members of the Committee recommended against any further legislation in this space. However, if the Government of Canada were to introduce legislation that incorporates a right to disconnect, their recommendation was that there should be some flexibility for employers to adapt it based on their industry and workplace needs.

The Union/Non-Governmental Organization Recommendations

The union and non-governmental organization recommendations were different from the employer’s recommendations and centred on the view that workers can be penalized for trying to establish their own boundaries and that in many non-unionized workplaces, there may not be a clear channel for employees to influence workplace policies in this space.

The union/non-governmental organizations recommended that there be a statutory right to disconnect and also a definition of deemed work. Deemed work can occur when an employee is not scheduled to work but is permitted or otherwise required to be working (for example an employee answers so many emails outside of work hours that they are essentially working).

What do Employers and Employees Need to Know About the Right to Disconnect?

The Committee’s Final Report is an informed advisory document for the Government of Canada. However, given the divided conclusions, it does not mean that all of the recommendations will be adopted word for word from the Final Report.

The Federal Minister of Labour, Seamus O’Regan, reportedly stated the following about the Final Report:

The biggest battleground for mental health right now is the workplace. The line between work and home has become blurred by the pandemic, and boundaries are more important than ever. We’re committed to a right-to-disconnect policy in Canada, and I welcome the Committee’s recommendations.

We will continue to monitor the federal regulatory situation, including any new legislation. In the meantime, both employers and employees should be mindful of existing regulations in this space. Employers who create a culture where employees can never disconnect may be creating a workplace of overwork, which already exposes the employer to significant legal and reputational risk. We have previously covered this topic here.

Contact Peter A. McSherry in Guelph for Advice on Employment Standards and the Right to Disconnect

If you are an employee concerned about your workplace rights or an employer concerned about your workplace policies, contact the offices of employment lawyer Peter A. McSherry. We advise employees and employers on a wide range of workplace-related legal matters, including employment standards and issues involving allegations of overwork. Contact us online or by phone at 519-821-5465 to schedule a consultation.