On February 18, 2022, the Ministry of Labour (the “Ministry”) updated its Guide to the Employment Standards Act (“ESA Guide”) to include a chapter on written policies on disconnecting from work (“DFW Policy”). The Employment Standards Act, 2000 [ESA] was amended in December 2021 to include, among other changes, a new requirement for employers with 25 or more employees to have a DFW Policy. We previously wrote about these amendments to the ESA when they were initially proposed by the Ontario government in October 2021.
To this point Ontario employers have been unclear as to what a DFW Policy must contain, or whether additional regulatory requirements would be coming later in the year. The Ministry’s updated chapter on the new DFW Policy requirement provides employers greater clarity on requirements and key considerations for employers when drafting and implementing DFW Policies. The ESA Guide clarifies that employers have some flexibility as to how they want to craft DFW Policies.
A summary of the key points from the Ministry’s new chapter on the DFW Policy requirement is outlined below.
Which Employers Are Required to Have a DFW Policy?
Employers in Ontario that have 25 or more employees on January 1 of any year are required to have a DFW Policy. An employee includes anyone who meets the definition of “employee” under the ESA, which includes employees who are on a leave of absence, officers of a corporation, and employees on a lay-off.
For the purposes of determining whether the 25-employee threshold has been met, employers should note that each part-time and casual employee will count as one full employee.
If an employer has multiple locations, it must count the cumulative total employees at each location in Ontario when determining whether the 25-employee threshold has been met.
Two or more separate employers may be considered a related employer under the ESA where they are closely linked in business operations. Where employers are considered “related employers” under the ESA, all employees that are employed in Ontario by the two or more related employers are included in the total count of employees for determining whether a DFW Policy is required.
Temporary Help Agencies
Temporary help agencies are employers for the purposes of the DFW Policy requirement. Therefore, temporary help agencies must include assignment employees when determining whether the agency meets the 25-employee threshold.
Assignment employees, however, should not be included in the count of total employees for any clients of a temporary help agencies who use assignment employees for work.
What Must the DFW Policy Include?
The ESA Guide specifies that the employer will be responsible for determining the contents of its DFW Policy. Although this provides the employer with broad discretion over the contents of its DFW Policy, the ESA Guide specifies that:
- the contents of the DFW Policy must be about disconnecting from work, as defined in the ESA;
- the DFW Policy must include the date that the DFW Policy was prepared, and if applicable, the date that any changes were made to the DFW Policy;
- the Policy has to apply to all employees, though the content of the DFW Policy does not need to be the same for all groups of employees; and
- the DFW Policy must be in place within the specified timeframe (June 2, 2022 for 2022, and for all other years, by March 1).
A copy of the written DFW Policy must be provided to all existing employees within 30 calendar days of the Policy being prepared, or within 30 calendar days of any changes made to the DFW Policy. All new employees must also be provided with a copy of the DFW Policy within 30 calendar days of the new employee’s hire date.
Which Employees Must the DFW Policy Apply To?
The DFW Policy must apply to all of an employer’s employees in Ontario, which includes management, executives, and shareholders if the nature of their role falls under the definition of “employee” under the ESA Guide. The DFW Policy must apply to all full-time employees, as well as part-time and casual employees regardless of the number of hours that these employees work.
Although a DFW Policy must apply to all employees, employers are provided with the flexibility to create different DFW Policies (either in a single document or multiple documents) for different groups of employees if necessary.
Takeaways for Employers
The updated ESA Guide clarifies that there are few “hard and fast rules” on what must be included in a DFW Policy. This is good news for employers, as it confirms that employers have broad discretion over the contents of their DFW Policies. In light of this broad discretion, employers should take time to carefully consider any potential impact of disconnecting-from-work procedures and measures before implementation.
Employees have existing rights under the ESA that may also intersect with the right to disconnect, including vacation with pay, public holidays, hours of work and eating periods, and the rules in O. Reg. 285/01 that establish when work is “deemed” to be performed. All provisions within a DFW Policy must comply with any other employee rights under the ESA to ensure that the DFW Policy is enforceable.
Lastly, employers should exercise caution when drafting the provisions in its DFW Policy to avoid creating a “greater right or benefit” for employees when not intended. If an employer chooses to include in its DFW Policy an employee right to not perform in a circumstance where the work would otherwise be permitted under the ESA, then that provision may amount to a “greater right or benefit” that the employee would be entitled to legally enforce against the employer. This greater right or benefit may pose a risk to employers, as the minimum standards of the ESA would no longer apply, and employers would instead be bound by the greater entitlements in the DFW Policy. Therefore, employers should consider an employee’s contractual, common law, and ESA entitlements when drafting DFW Policies to reduce unforeseen liability and practical issues in the workplace.