On October 25, the Ontario government announced the introduction of Bill 27, the Working for Workers Act. This bill has a number of ramifications for Ontario’s employers and employees. Perhaps no aspect has received as much attention as what is often referred to as the right-to-disconnect law.
Work-life balance has become more difficult to achieve during the COVID-19 pandemic. Employees are accessible virtually at any time through email and phone calls because of smartphones. The lines between work life and private life have become increasingly blurred, and for many workers, it’s leading to burnout.
The federal government proposed similar legislation in 2018 and signalled earlier this year that it was interested in implementing right-to-disconnect laws for the federal sector. Ontario’s announcement regarding a right-to-disconnect law could be followed by other provinces in Canada.
Here’s what workers need to know about the proposed Ontario law.
The bill does not necessarily give employees the right to disconnect
Bill 27 creates a requirement on employers with 25 or more employees to have a written policy on disconnecting from work, which includes emails, phone calls or video calls.
The bill, however, doesn’t specify what that company policy must say, only what topics the policy must address. It creates an obligation for an employer to communicate when employees should expect to work, but it would not prohibit employers from creating an employment relationship that would require employees to be on-call.
As with many other employment standards, any actual regulations put in place may carve out exceptions for certain professions. This means Bill 27 may not actually impact some employees’ right to a healthy work-life balance.
Right-to-disconnect in employment agreements and company policies
Many employers will likely incorporate these policies into employment agreements, a document every employee should read carefully before signing.
An employment agreement is typically drafted by an employer, and in my experience as an employment lawyer, it is most often the employer who benefits from these agreements. That’s why I recommend that employees consult an employment lawyer at Samfiru Tumarkin LLP before signing a new employment agreement.
With Bill 27, those in Ontario interviewing for a new position may see a right-to-disconnect section in their offer letter. In most other cases, however, employers will likely issue a mass policy setting out expectations for everyone.
Employers are subject to maximum hours and overtime laws
Employers in Canada are generally limited as to how many hours an employee can be asked to work.
In Ontario, the general rule is that an employee cannot be forced to work more than eight hours in a regular workday without a written agreement. In B.C., most employers must ensure that each employee has eight consecutive hours free from work between shifts. In Alberta, the general maximum workday is 12 hours per day.
Higher rates can also apply to those who work additional hours. In Ontario and Alberta, overtime is generally payable once an employee has exceeded 44 hours per week. In B.C., the overtime threshold is 40 hours per week.
A change in hours can be a constructive dismissal
Ontario’s right-to-disconnect law does not remove an employee’s right to claim constructive dismissal — termination that entitles them to full severance pay — when they are consistently being asked to work after hours.
Whenever an employee comes to me with an issue regarding their hours of work, the first place I always start is their employment agreement, if they have one. If the employer has gone beyond the hours agreed, it could count as a constructive dismissal.
If an employment agreement does not exist, then we will typically look at what hours that employee has worked in the past, how consistent those hours have been and how long that arrangement has been in place, among other things.
For example, if an employee has worked from 9 a.m. to 5 p.m. for 10 years and is now being asked to work night shifts, that employee could be entitled to treat their employment as having been constructively terminated.
This could also be the case if an employee who worked in an office on a 9-to-5 schedule is suddenly expected to answer emails throughout the night. As a result, the employee could be entitled to severance — which can be as much as 24 months’ pay.
Are your employer’s demands eating into your personal time? Find out what your rights are before you resign.
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Jonathan Pinkus is an employment lawyer and partner at Samfiru Tumarkin LLP, Canada’s most positively reviewed law firm specializing in employment law and long-term disability claims. His firm provides free advice as the host of Canada’s only Employment Law Show on TV and radio.