Written policy on disconnecting from work
Employers that employ 25 or more employees are required to have a written policy on disconnecting from work in place for all employees. They are also required to provide a copy of the written policy to all employees.
These requirements were added to the Employment Standards Act, 2000 (ESA) on December 2, 2021. There was a special rule that applied in the first year of the requirement. Employers that employed 25 or more employees on January 1, 2022 had until June 2, 2022 to have a written policy on disconnecting from work in place.
Beginning in 2023, and in the years that follow, employers that employ 25 or more employees on January 1 of any year must have a written policy on disconnecting from work in place before March 1 of that year.
The term “disconnecting from work” is defined in the ESA to mean not engaging in work-related communications, including emails, telephone calls, video calls or sending or reviewing other messages, to be free from the performance of work.
However, the ESA does not require an employer to create a new right for employees to disconnect from work and be free from the obligation to engage in work-related communications in its policies. Employee rights under the ESA to not perform work are established through other ESA rules.
The requirement relating to written policies on disconnecting from work applies to all employees and employers covered by the ESA except the Crown, a Crown agency or an authority, board, commission or corporation whose members are all appointed by the Crown and their employees.
Employers with 25 or more employees required to have written policy
Only employers that employ 25 or more employees in Ontario on January 1 of any year are required to have a written policy on disconnecting from work.
To determine how many employees they have, the employer must count the number of employees it employs on January 1.
It is the individual number of employees that are counted, and not the number of "full-time equivalents." Part-time employees and casual employees each count as one employee, regardless of the number of hours they work.
Where an employer has multiple locations, all employees employed at each location in Ontario must be included when determining whether the 25-employee threshold has been met.
In certain circumstances, two or more employers may be treated as one employer under the ESA.
If two or more employers are treated as one employer, then all employees employed in Ontario by these two or more employers are included in the count.
Employees to include in the count
Anyone who meets the definition of "employee" is counted, including:
- probationary employees
- some trainees
- officers of a corporation who perform work or supply services for wages
- employees on definite term or specific task contracts of any length
- employees who are on lay-off, so long as the employment relationship has not been terminated and/or severed
- employees who are on a leave of absence
- employees who are on strike or who are locked-out
- employees who are exempt from the application of all or part(s) of the ESA (although these employees may not be covered by the disconnecting from work provisions of the ESA, they are included in the count to determine whether the employer employs at least 25 employees)
Temporary help agencies
Assignment employees of temporary help agencies are employees of the agency and are included in the count to determine if the temporary help agency has met the 25-employee threshold. Assignment employees of temporary help agencies are not included in the count to determine whether the client the employee is assigned to meets the threshold.
The agency’s count must include all its assignment employees, whether active or inactive on January 1.
When the number of employees changes throughout the calendar year
If on January 1, the employer employs fewer than 25 employees in Ontario , then the ESA does not require that it have a written policy in place on disconnecting from work. This is the case even if the employer’s employee count increases at a later point in the same calendar year.
When the employee count increases throughout the year
If an employer employs 20 employees in Ontario on January 1, 2022, the requirement to have a written policy in place on disconnecting from work does not apply. The employer hires five more employees in May 2022. This employer continues to not be subject to the requirements to have a written policy in place for 2022.
However, if all 25 employees remain employed by that employer on January 1, 2023, the employer would meet the 25-employee threshold on January 1, 2023 and will be required to have a written policy on disconnecting from work in place for all employees before March 1, 2023.
When the employee count decreases throughout the year
On the other hand, if an employer employs 25 employees or more in Ontario on January 1 (and as a result the requirement does apply) and their employee count decreases later in the same calendar year, the employer is still obligated to have a written policy in place on disconnecting from work. This is the case until the assessment of the “25-employee threshold” is done again the following January. If the employer employs fewer than 25 employees the following January 1, the obligation to have a written policy in place does not apply for that calendar year.
Copy of the written policy
An employer that is required to have a written policy in place must also provide a copy of the written policy to its employees within 30 calendar days of:
- the policy being prepared
- the policy being changed (if an existing policy is changed)
Once an employer has the written policy in place, there is no requirement to develop a new policy by March 1 of each year. However, the employer must provide a copy of the written policy to any new employees within 30 calendar days of the new employee being hired.
The employer may provide the policy to employees as:
- a printed copy
- an attachment to an email if the employee can print a copy
- a link to the document online if the employee has a reasonable opportunity to access the document and a printer (and knows how to use the computer and printer)
Written policy requirements
The employer’s written policy must be on “disconnecting from work,” which is defined to mean not engaging in work-related communications, including emails, telephone calls, video calls or sending or reviewing other messages, to be free from the performance of work. As the list of work-related communications is inclusive, and not exhaustive, other types of work-related communications could also fall under this definition.
The employer must include the date the policy was prepared and the date any changes were made to the policy. The date must include the day, month and year. Other than these requirements, the ESA does not specify the information the employer must include in the policy nor does it specify that the policy must be a particular length. The employer determines the content of the policy itself.
The ESA does not specify that the policy provide a right for the employee to disconnect from work and be free from the obligation to engage in work-related communications.
Employee rights under the ESA to not perform work are established through other ESA rules, including:
- hours of work and eating periods
- vacation with pay
- public holidays
- the rules in Ontario Regulation 285/01 that establish when work is “deemed” to be performed
While it is not required by the ESA, in some cases, an employer may include a provision in their written policy on disconnecting from work that gives an employee the right not to perform work when the rules in the ESA would otherwise permit work to be performed. This provision may amount to a greater right or benefit and may be enforceable under the ESA. In circumstances where the provision does not amount to a greater right or benefit, an employer may wish to seek legal advice about whether the provision would create any entitlements outside of the ESA (for example, contractual or common law entitlements).
Written policy must apply to all employees
The written policy on disconnecting from work must apply to all of the employer’s employees in Ontario. This includes management, executives and shareholders if they are employees under the ESA. The employer would not be in compliance with the requirements of the ESA if its policy only applied to some of its employees (for example, if the policy applied only to the employer’s sales staff but not its managerial staff).
This doesn’t mean that the employer is required to have the same policy for all its employees. The employer can have a single policy that applies to all employees, or its policy can contain different policies (either in a single document or in multiple documents) for different groups of employees. For example, a retail employer may decide to have one policy that applies to its office staff and a different policy that applies to its in-store sales staff.
The written policy on disconnecting from work may be a stand-alone document, or it may be part of another document (for example, a comprehensive workplace human resource policies and procedures manual).
Examples of what a “disconnecting from work” policy may address
- The employer’s expectations, if any, of employees to read or reply to work-related emails or answer work-related phone calls after their shift is over.
- The policy may set out employer expectations for different situations. For example, the policy may contain different expectations depending on:
- the time of day of the communication
- the subject matter of the communication
- who is contacting the employee (for example the client, supervisor, colleague)
- The employer’s requirements for employees turning on out-of-office notifications and/or changing their voicemail messages, when they are not scheduled to work, to communicate that they will not be responding until the next scheduled work day.
Employer checklist for a written policy on disconnecting from work
Here’s what employers need to ensure when creating a written policy on disconnecting from work.
- Determine whether you are required to have a written policy in place
- If you are subject to the requirement, develop a written policy and ensure the policy:
- is about disconnecting from work, as defined in the ESA
- includes the date it was prepared and, if applicable, the date any changes were made to the policy (the date must include the day, month and year)
- applies to all of your employees (note that the content of the policy does not need to be the same for all groups of employees, though all employees must be covered by the policy)
- is in place within the specified timeframe (for 2022, the policy was required to be in place by June 2, 2022. For all other years, the policy must be in place before March 1 of that year).
- Provide a copy of the written policy to all of your employees:
- in the appropriate format
- within 30 calendar days of the policy being prepared or changed (if an existing policy is changed).
Note that a new employee must be provided with a copy of the written policy within 30 days of being hired.
- Retain a copy of every written policy required by the ESA:
- for three years after the policy is no longer in effect
If the policy is not followed
If the employer’s written policy on disconnecting from work creates a greater right or benefit than an employment standard under the ESA, that greater right or benefit may be enforceable under the ESA. If the employer’s policy on disconnecting from work does not create a greater right or benefit, the policy is not enforceable under the ESA.
However, other ESA rules may apply. Employers continue to have the obligation to follow other rules under the ESA including hours of work and eating periods, vacation with pay and public holiday rules (unless exemptions or special rules apply).
Employer record-keeping requirements
Employers must retain a copy of every written policy on disconnecting from work that was required by the ESA for three years after the policy is no longer in effect.