Part VII.0.1 - Written policy on disconnecting from work

Part VII.0.1 was added to the ESA 2000 by the Working for Workers Act, 2021 (WFWA), effective December 2, 2021.

Part VII.0.1 of the ESA requires employers that employ 25 or more employees on January 1^st of any year to have a written policy in place before March 1^st of that year for all employees with respect to disconnecting from work. The policy must include the date it was prepared and the date any changes were made to the policy. The employer also has certain obligations with respect to providing a copy of the written policy to its employees and with respect to the retention of its disconnecting from work policies (see subsection 15(8) for more information on the record-keeping obligations).

A transitional provision sets out different timeframes that apply when the Part first takes effect; employers are to use January 1, 2022 (which is the January 1^st immediately preceding the date that is six months after the WFWA receives Royal Assent) as the point-in-time to establish whether they meet the “25-employee threshold” and, if they do, they must have a written policy in place for all employees with respect to disconnecting from work by June 2, 2022 (which is six months after the day the WFWA received Royal Assent). After 2022, the transition provision will no longer have any effect and the time periods apply as set out in subsection 21.1.2(1).

The phrase “disconnecting from work” is defined to mean 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.

Part VII.0.1 applies to all employees and employers covered by the ESA, except the Crown, a Crown agency or an authority, board, commission or corporation all of whose members are appointed by the Crown and any employees of such an employer. See section 2.1 of O. Reg. 285/01 for information.

Section 21.1.1 – Interpretation

Interpretation - s. 21.1.1

This provision was added to the ESA by the Working for Workers Act, 2021 effective December 2, 2021.  Section 21.1.1 defines the phrase “disconnecting from work” for the purposes of Part VII.0.1 of the Act.  As such, this definition applies to the requirement set out in section 21.1.2 providing that, where the relevant criteria are met, an employer must – within the required timeframe - ensure it has a written policy in place for all employees with respect to disconnecting from work.

“Disconnecting from work” is defined to mean 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 definition provides an inclusive list of some types of work-related communications: emails, telephone calls, video calls, sending and/or reviewing of other messages.  As this list is inclusive, and not exhaustive, other types of work-related communications could equally fall under this definition. 

Per the definition, “disconnecting from work” means not engaging in work-related communications and, as such, the employee would consequently “be free from the performance of work” during the time the employee is “disconnected”. Note that per the ESA’s rules on when work is deemed to be performed, if an employee performs work, for example engages in reviewing or drafting emails, the time the employee spends doing those activities is generally considered to be “working time” under the ESA. This is the case even if the employee does so, for example, from home after the employee’s day shift is over and where a “disconnecting from work” policy that says employees are not to work from home is in place.  See s. 1.1 of O. Reg. 285/01 for more information. 

Section 21.1.2 – Written policy on disconnecting from work

Written policy on disconnecting from work - s. 21.1.2(1)

Subsection 21.1.2(1) was added to the ESA 2000 by the Working for Workers Act, 2021, effective December 2, 2021.

Section 21.1.2 creates certain obligations on employers to put in place and distribute to their employees a written policy about “disconnecting from work”. This section does not establish a right for employees to disconnect from work. Employees’ rights under the ESA to not perform work are established in other Parts of the Act, particularly the Hours of Work and Eating Periods, Vacation With Pay, and Public Holiday Parts of the Act, in conjunction with the “When Work Deemed to be Performed” provision in O. Reg. 285/01. However, an employer’s policy may amount to a greater right or benefit than an employment standard under the Act or may otherwise be contractually binding, and therefore the policy may itself establish a right that applies instead of the employment standard.

Subsection 21.1.2(1) provides that an employer that employs 25 or more employees on January 1^st of any year must, before March 1 of that same year, ensure that a written policy is in place for all employees with respect to disconnecting from work. Disconnecting from work is defined in section 21.1.1. The policy must include the date the policy was prepared and the date any changes were made to the policy.

Note that this provision must be read in conjunction with subsection (5) , which is a transition provision that applies when the Part first takes effect. Subsection (5) modifies both the reference date for determining whether the 25-employee threshold is met (to January 1, 2022) and the timeframe within which a written policy with respect to disconnecting from work must be in place to June 2, 2022 (which is six months after Royal Assent). After 2022, the transition provision will no longer have any effect and the time periods apply as set out in subsection 21.1.2(1).

In order to better understand the provision, the key elements have been broken down and discussed individually below.

An employer that employs 25 or more employees on January 1 of any year

In order for an employer to be required to have a written policy in place for all employees with respect to disconnecting from work under the ESA, the employer must employ 25 or more employees on January 1^st of any year. This is a point-in-time assessment. In other words, in order to determine whether this criterion is met, the employer must take a “snapshot” of the number of employees it employs on January 1^st.

If on January 1^st, the employer employs fewer than 25 employees, then the ESA does not impose a requirement that the employer have a written policy in place with respect to disconnecting from work. This is the case even if the employer’s employee count increases at a later point in the same calendar year. For example, if an employer employs 20 employees on January 1^st (and hence the requirement does not apply) and later hires five more employees in June of that same year, the employer continues to not be subject to the requirements to have a written policy in place for all employees with respect to disconnecting from work. However, if all 25 employees remain employed by that employer, the employer will have obligations under this Part in the following year when the “snapshot” assessment is again undertaken on the following January 1^st. In this example, the employer will have 25 employees on that January 1^st date and will therefore be required to have a written policy in place for all employees with respect to disconnecting from work before March 1^st of that year.

Conversely, if an employer employs 25 employees or more on January 1^st (and hence the requirement applies) and that employer’s employee count decreases at a later point in the same calendar year, the employer is still obligated to have a written policy in place with respect to disconnecting from work. This is the case until the “snapshot” assessment of the “25-employee threshold” is again undertaken on the following January 1^st. If the employer employs fewer than 25 employees on January 1, the ESA requirement to have a written policy in place no longer applies to that employer.

There are a number of issues that may arise in determining whether the “25-employee” threshold is met:

i. Related employers

If two or more employers are treated as one employer by virtue of s. 4 of the Act, then all employees employed by these two or more employers are included when determining whether the "25-employee" threshold has been met. This is because of the definition of "employer" in s. 1 of the Act, which reads:

ii Multiple locations

Where a single employer has multiple locations, all employees employed at each of the locations in Ontario are to be included when determining whether the "25-employee" threshold has been met. For example, an employer owns three sandwich shops with 12 employees employed in each shop on January 1^st. This employer employs 36 employees. The employer must have a written policy in place for all employees with respect to disconnecting from work, even though there are fewer than 25 employees employed at each individual shop.

iii Which employees are included in the count?

All workers who meet the definition of "employee" are included when determining whether the 25-employee threshold has been met. See the discussion of the definition of "employee" in ESA Part I, s. 1 of the Manual. Included in the definition of "employee" are:

• homeworkers
• probationary employees
• some trainees
• officers of a corporation who perform work or supply services for wages
• employees on definite term or specific task contracts of any length
• employees who are on lay-off, so long as the employment relationship has not been terminated and severed pursuant to Part XV of the Act
• employees who are on a leave of absence, including leaves of absence under Part XIV of the ESA
• employees who are on strike or who are locked-out. Persons on strike or lock-out are employees under common law and are also considered to be employees under the inclusive definition of "employee" in the Act, and
• employees who are exempted from the application of all or part of the Act. Employees do not lose their status as employees merely by virtue of being exempt from all or part of the Act.

Employees of temporary help agencies are employees of the agency, so are included in the count only for the purpose of determining whether the agency has met the 25-employee threshold, not for the purpose of determining whether the client the employee is placed with has met the 25-employee threshold. Note that the agency’s count must include all of its assignment employees, whether active or inactive on January 1^st.

When this “count” is being done, it is the number of employees that are counted, and not the number of "full-time equivalents". This means that part-time employees each count as one employee, regardless of the number of hours they may work. For example, an employer that employs 26 part-time employees who each work halftime has 13 full-time equivalents, but employs 26 employees for the purpose of this provision.

The question is not whether there are at least 25 employees scheduled to work or working on January 1. The question is whether the employer has an employment relationship with at least 25 employees on January 1.

The policy must be in writing and must be in place before March 1^st

The employer’s policy with respect to disconnecting from work must be in writing, which includes being electronic. Note that subsections (2) and (3) impose requirements on the employer with respect to providing a copy of the written policy to employees.

The policy must be in place before March 1^st. In other words, the latest day the policy can take effect in order for the employer to be in compliance with the provision is the last day of February. (Note this is not the case during the time when the transition provisions in subsection (5) apply.)

While compliance with this provision requires the employer to have a written policy with respect to disconnecting from work in place by March 1^st - and to provide a copy of the written policy to employees within the set timeframes - note that there is no contravention of Part VII.0.1 simply because the employer doesn’t put into practice what has been described in its policy.

All employees must be covered by a written policy

All employees must be covered by the employer’s written policy. In other words, the employer would not be in compliance with this provision if its policy applied to only a portion of its employees – for example, if the policy applied only to the employer’s sales staff but not its managerial staff. However, this doesn’t mean that the employer is required to have the samepolicy for all of its employees. It is Program policy that the employer’s policy can be comprised of different policies (either in a single document or in multiple documents) for different individuals or different groups/classes of employees or it could be a single policy that applies to its employees across-the-board. The written policy with respect to disconnecting from work may be a stand-alone document, or it may be part of another document (e.g. a comprehensive workplace HR policies and procedures manual).

The written policy must be with respect to disconnecting from work

The written policy that is in place must be with respect to disconnecting from work. Section 21.1.2 does not specify what type of information the policy must contain, though subsection (4) provides that the policy must contain any information that is prescribed by regulation (no such regulations were prescribed at the time of writing).

“Disconnecting from work” is defined in section 21.1.1.

In order to be in compliance with section 21.1.2, the topic of the employer’s policy must therefore be employees not engaging in work-related communications, so as to be free from the performance of work.

This provision does not create a “right to disconnect from work” for employees. In other words, it does not impose obligations on an employer to allow employees to “disconnect from work” and to be free from the obligation to engage in work-related communications. However, it does require that the employer’s policy around “disconnecting from work” be stated in writing and provided to employees per subsections (2) and (3).

Some examples of what a “disconnecting from work” policy may address:

• The employer’s expectations, if any, of employees to read or to reply to work-related emails or to answer phone calls after their shift is over.
  • The policy may set out different expectations for different situations. For example, the policy may contain different expectations depending on the time of day of the communication, the subject matter of the communication, or who is contacting the employee – e.g. the client, a supervisor, or a colleague.
• The employer’s requirements in relation to employees turning on out-of-office notifications and/or changing their voicemail messages when they are not scheduled to work to signal that they will not be responding until the next scheduled work day.

Note that per the ESA’s rules on when work is deemed to be performed, if an employee performs work, for example engages in reviewing or drafting emails, the time the employee spends doing those activities is generally considered to be “working time” under the ESA. This is the case even if the employee does so, for example, from home after the employee’s day shift is over and where a “disconnecting from work” policy that says employees are not to work from home is in place. See s. 1.1 of O. Reg. 285/01 for more information.

Note also that the contentof an employer policy with respect to disconnecting from work may amount to a greater right or benefit than an employment standard under the Act, per ss. 5(2) and may be enforceable under the ESA. Even if the policy does not amount to a greater right or benefit, it may otherwise be contractually binding.

The written policy includes the date it was prepared and the date of any changes made to the policy

The employer’s written policy must include the date it was prepared and if any changes are made to the policy after that time, the date(s) of any those change must also be included. See subsection (2) for information about the employer’s obligation to provide a copy of the written policy to all employees within 30 days of the policy being prepared or changed.

Note that per s. 15(8.1) employers have an obligation to retain a copy of every written policy on disconnecting from work that was required under this Part for three years after the policy ceases to be in effect.

Copy of policy - s. 21.1.2(2), (3)

Subsections 21.1.2(2) and 21.1.2(3) were introduced into the ESA by the Working for Workers Act, 2021 on December 2, 2021. These provisions establish rules about when the written policy must be provided to employees.

Pursuant to ss. 21.2.2(2), the employer must provide a copy of the written policy with respect to disconnecting from work to each of its employees within 30 days of the policy having been prepared or, if an existing policy was changed, within 30 days of the changes being made. Subsection 21.2.2(3) requires an employer to provide a copy of the written policy with respect to disconnecting from work that applies to a new employee within 30 days of that individual becoming an employee of the employer. “Days” in these subsections means calendar days.

Where an employer has different policies for different employees or employee groups, it is Program policy that the obligation is to provide only a copy of the policy that applies to that particular employee.

It is the Program’s position that an employer may provide the policy as a printed copy or as an attachment in an email to the employee. Further, and consistent with the Program's position regarding the provision of written wage statements under s. 12(1) and the information sheets for assignment employees under s. 74.7(3), an employer may provide the written policy via a link to the document on an internet database, if the employer ensures the employee has reasonable access to that database (i.e. the employer must ensure the employee has access to a computer - which includes devices such as tablets and smart phones - and is able to access a working link to the document) and ensures the employee has access to a printer and that the employee knows how to use the computer and the printer.

Prescribed information - s. 21.1.2(4)

An employer’s written policy with respect to disconnecting from work that is required under ss. 21.1.2(1) must contain any information that is prescribed. At the time of writing, no information is prescribed. As such, the only information the policy must include is the date it was prepared as well as the dates any changes were made to the policy, as per subsection (1). There is no other specified information that must be contained I the employer’s written policy.

Transition – s. 21.1.2(5)

This provision was added by the Working for Workers Act, 2021 (WFWA). It is a transition provision that modifies the January 1^st and March 1^st dates set out in subsection (1) for when the WFWA receives Royal Assent and Part VII.0.1 first comes into force (note this occurred on December 2, 2021). It provides that:

• employers have until six months after the WFWA receives Royal Assent, which is June 2, 2022, instead of March 1^st to have a written policy with respect to disconnecting from work in place for all its employees, and
• in determining whether the “25-employee threshold” is met, which establishes whether the employer has an obligation to have a written policy in place, the employer is to look at the number of employees it employed on the January 1^st immediately preceding the date that is six months after the WFWA received Royal Assent. In other words, given that June 2, 2022 is six months after the WFWA received Royal Assent, the employer will determine the number of employees it employed on January 1, 2022 to establish if the “25-employee” criterion is met.

Subsection 21.1.2(5) no longer has any effect after the transition period. In other words, after 2022, the timelines set out in subsection (1) will apply: employers will take a “snapshot” of the number of employees they employ on January 1, beginning in 2023, to determine if the “25-employee threshold” is met and, if it is, they are required to have a written policy in place before March 1 of that year.