On April 11, 2022, Ontario’s new Working for Workers Act, 2021 received royal assent, which introduced many employee-friendly changes to the Employment Standards Act, 2000. The Minister of Labour declared that the changes would “require most workplaces to have a right to disconnect policy.”

The government’s boastful statements could understandably make an employer—and condo directors, owners and residents—worry that their employees or service providers, including management, were about to become completely unreachable outside their scheduled work hours.

Well, not quite.

Right to a disconnection policy, but no right to disconnect

The new rules don’t actually give employees a right to disconnect. In fact, they don’t give employees any new rights to refuse work or ignore work communications. Instead, the new rules require some employers to simply have “a written policy in place for all employees with respect to disconnecting from work.”

Employers are essentially free to determine the content of their disconnection policies for themselves. The only requirements are that the policy must:

(i) address disconnecting from work;

(ii) include the date the policy was prepared; and

(iii) include the date any changes were made to the policy.

The new rules tell us that 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.”

The Ministry of Labour suggests that a disconnection policy could address the employer’s expectations about reviewing and responding to after-hours emails or phone calls or for setting out-of-office notifications. However, the new rules don’t require that disconnection policies say anything in particular about disconnecting from work.

This means that a disconnection policy does not need to say that employees have an actual right to disconnect.

Instead, an employer can have a disconnection policy that is limited to explaining that the employer follows the relevant employment standards, such as those relating to hours of work, vacation, holidays, and overtime—all of which existed before the new rules came into effect. However, if an employer adopts a policy that does offer additional rights to its employees, the enhanced rights could be enforceable against the employer.

Disconnection policies not required for small employers

An employer is only required to have a disconnection policy in a given year if it employed 25 or more employees on January 1 of that year. The obligation doesn’t change during the year if the employer gains or loses employees; the January 1 date is all that matters.

Each employee counts towards the 25-employee threshold, whether employed full-time, part-time, or casually. However, employees of temporary help agencies who are assigned to a client business are treated as the agency’s employees, not as the client business’s employees.

Condo corporations themselves would rarely reach the 25-employee threshold, meaning they wouldn’t have an obligation to have a disconnection policy. However, many condo-related service providers, such as management and security service providers, will in many cases have 25 or more employees.

What’s the takeaway?

Although the new rules fall short of “requiring most workplaces have a right to disconnect policy,” they do serve as an important reminder to employers and condo corporations on certain issues.

For instance, the new rules are a reminder that sending and reviewing messages, whether by phone, email, or instant message, is a type of work. And although the new rules may not create any new rights for employees, they shine a spotlight on unpaid, off-the-clock work that many employees perform when they invariably respond to messages after hours.

Some email clients, such as Microsoft Outlook, now have features that suggest when emailing after-hours that your email message be scheduled to be sent during business hours; in condoland, however, this may be impractical as directors have a varying ability to respond to emails during the day.

Employers, particularly employers whose employees are paid by the hour, should review their practices and policies for tracking and recording hours of work to ensure that after-hours work is being properly tracked and paid.

Condo directors needn’t worry that their managers will all of a sudden become radio silent after their designated office hours. However, employers, and condo corporations that don’t have any employees, should take a hard introspective look at their own workplace culture when it comes to unwritten expectations for responding to inquiries (and, in particular, non-urgent communications) after hours. For some service providers, directors may consider requesting a copy of their service provider’s disconnection policy; this could assist in the condo corporation’s review of their own culture and, in some cases, the policy may be necessary to an assessment of excess charges paid to service providers for after-hours work.

While the new legislation may not create a right to disconnect, given the public attention the issue has received, many employees are likely to begin tracking their time and demanding payment for all off the clock work – or considering other opportunities where disconnecting from work is encouraged.

Josh is a condo lawyer at Lash Condo Law whose experience spans all things condo-related. He is actively involved in the condo industry and is a frequent speaker at industry conferences and seminars. As the past president of his condo corporation in downtown Toronto, Josh learned first-hand about being a director – and gained valuable insight into what directors want from their lawyers.