Ontario’s Bill 148 may have created a right to disconnect – even for supervisors and managers
The right to disconnect – to leave your work at work, instead of buzzing in your pocket – is regarded as an aspiration instead of a reality for most Ontario employees. But there may already be a legal basis for the right to disconnect sitting right under our noses, in none other than the Employment Standards Act the (“ESA”).
What is the right to disconnect?
Given the ease of communication that modern technology has afforded, the lines between an employee’s work and private life are blurring more than was ever possible. Constant connection to the workplace has become the norm — even the expectation for many jobs.
The right to disconnect is a statutorily-protected right to ignore work-related calls, e-mails, and other electronic messages off-work hours. France was the first jurisdiction to legally adopt the right to disconnect in 2016.
Do Canadian employees have a right to disconnect?
No right to disconnect has been formally adopted in Canada, although the federal government is considering a right to disconnect for employees in federally-regulated industries, such as banks and telecommunications.
Is there any right to disconnect in Ontario?
Up until (arguably) the recent amendments to the ESA, no right to disconnect existed for Ontario employees. While being required to answer calls or e-mails on a Saturday morning, for instance, could entitle an employee to overtime pay, categorically refusing to do so could (in many cases) constitute misconduct.
Enter Bill 148’s new scheduling requirements
In 2017, Ontario passed Bill 148 – a retrofit of its employment standards to adapt to the changing realities of the modern workplace. One of the changes to the ESA was the addition of Part VII.2, which deals with scheduling and on-call work.
Among other things, Part VII.2 of the ESA says this: in most cases, if your employer requires you to work on a day for which you’re not scheduled, they must provide you with: (a) at least 3 hours’ pay, regardless of how much time is actually spent working; and (b) at least 96 hours’ notice of the work. Without 96 hours’ notice of the work, the employee may refuse to work in most cases.
What do the scheduling requirements have to do with the right to disconnect?
The scheduling requirements in Part VII.2 of the ESA might mean that employees on a day off, for all intents and purposes, have a right to disconnect. That hinges on whether answering e-mails or phone calls constitutes “work” under the ESA.
While “work” is not defined under the ESA, Courts and Tribunals interpret the ESA in a way that extends maximum protection to employees. A court or tribunal is very likely to consider a requirement to answer phone calls or e-mails as “work”. That means that, for instance, if your boss emails you an urgent question about budget reports on Saturday morning, you are likely entitled to wait until Monday to figure out the answer.
What about supervisors and managers?
The conventional wisdom in Ontario is that, since supervisors and managers are exempt from all of the ESA’s rules regarding hours of work, those jobs are 24/7 gigs and employees must stay on top of work e-mails, even on their days off.
Interestingly, however, supervisors and managers are NOT exempt from the scheduling requirements Part VII.2 of the ESA. That means that, if a supervisor or manager has a right to specific days off, that employee also likely has the same right to disconnect as any other employees on those days.
Can employers get around this with creative scheduling?
Since this is fundamentally a matter of scheduling, one might wonder whether employers can get around this by simply “scheduling” their employees to answer work e-mails.
For non-managerial and non-supervisory employees, there are going to be at least some days where employees have a right to be off the grid; all such employees are guaranteed at least 24 hours free from work each week, and at least 48 hours free from work every 2 weeks. Employees cannot be required to work during those periods.
It is less clear whether employers can use this technique on supervisors and managers; there is nothing in the ESA preventing supervisors and managers from being on-call 24/7. However, Courts and Tribunals generally seek to avoid interpretations that allow employers to skirt the ESA and might easily reject an employer’s argument that the job requires 24/7 attention unless that is clearly borne out by the evidence.
Does that mean I can turn my work phone off when I’m not at work?
Probably not, due to the limits on the right to refuse work in this context. First, the right to refuse work only arises in respect of entire days off – for instance, it does not address after-hours e-mails on a workday. Second, the right to refuse work only arises if you have been given less than 96 hours’ notice. Third, the sections require an employee refusing work to “notify the employer of the refusal as soon as possible”, which in many cases sounds like more trouble than it’s worth.
What can I do about it?
We recognize that most employees do not want to create a conflict by insisting on their strict legal rights. If and when things get contentious, speak to a specialized employment lawyer. Call us today for advice on your workplace issue.
Contact Nicholas Goldhawk
Nicholas is an Associate of the Management-side Labour Group at BTZ. In this role, he advises management on all aspects of employment and labour law, including representation before administrative tribunals, collective agreement negotiations, arbitrations, wrongful dismissal defence, breach of contract, breach of fiduciary duty, and human rights.
Before joining BTZ, Nicholas articled and worked as an associate at a boutique labour and employment firm in Toronto where he assisted both employee and employer clients in formulating practical solutions for a wide variety of workplace-related issues.
Nicholas was called to the bar in 2017, after earning a J.D. from Osgoode Hall Law School. Prior to attending Law School, Nicholas obtained his Honours Bachelor of Journalism from Carleton University.
Before attending law school, Nicholas worked as an investigative journalist for a Canadian current affairs TV program.