The Right to Disconnect: New Ontario Legislation

Ontario has recently proposed new legislation aimed towards giving workers the “right to disconnect” from work. The new legislation will require employers with 25 or more employees to implement written policies pertaining to disconnecting from work. According to the legislation, “disconnecting from work” means: “not engaging in work-related communications, including emails, telephone calls, video calls or the sending or reviewing of other messages, so as to be free from the performance of work.” In the era of COVID-19, many employees find it difficult to disengage from work as they are bombarded and ambushed by emails and phone calls at all times of the day. As Monte McNaughton, Ontario’s Minister of Labour put it: “The lines between family time and work time have been blurred.” This new legislation, presumably, would give employees some relief. However, it is not clear whether the legislation will be successful.

The Legislation May be Ineffective

Some experts are of the opinion that the legislation will be ineffective without more clearly defined rules and incentives. The legislation does not provide a means of enforcing these new expectations. Employers can create disconnect policies in compliance with the legislation but, if there is no means of enforcing those policies, they might as well not exist at all. Furthermore, there is also a risk that employees will feel pressured not to disconnect despite the policy because they do not want to appear lazy or unmotivated or otherwise forfeit opportunities to others who choose not to disconnect.

Why would an employer want to promote an employee who no longer answers the phone after 5 pm (perhaps in compliance with their own policy) over an employee who answers the phone even in the middle of the night? Another concern involves considerations of professions where “disconnecting” is simply unfeasible – for instance, many lawyers have no option of disconnecting when a client is in a crisis.

Not as Bad as it Seems?

Despite the above concerns, other experts have weighed in to suggest the legislation is not quite as worrisome as the naysayers have made it out to be. Rather, the legislation appears quite sensible. The legislation requires transparency between employers and employees such that employees will be made aware of what hours they are expected to work. Those expectations will vary from workplace to workplace, which is fine so long as the employer is transparent (i.e., distributes their policy).

Abolishing the Non-Competition Agreement

On top of providing employees with transparency concerning their expected hours of work, the new legislation has an additional benefit: the abolishment of non-competition provisions in employment contracts. These agreements prevent employees from accepting a new position with another business in the same field or industry as their former employer. As it turns out, such agreements are usually already unenforceable – but most employees are unlikely to know this and will simply assume they are enforceable. By abolishing these non-competition agreements, the legislation is simply codifying in law what Ontario courts are already doing. More employees will be made aware of their rights and won’t need to pay considerable fees to have a lawyer advise them as to the unenforceability of such clauses.