With recent events prompting many employers and workers alike to re-evaluate flexible working policies, the time has come for parliament to revisit the “right to disconnect”.

According to a study published by Employment and Social Development Canada (ESDC) in 2018, an overwhelming 93% of survey respondents believed that employees should have the right to refuse to respond to work-related communications outside of working hours, and 79% supported policies to limit the use of work-related technology outside of working hours. Reasons for this included the negative impact on dealing with work issues during family or personal time, work stress detracting from the effectiveness of rest time and impacting sleep, and generally causing burn-out from their work.

This issue is exacerbated by the rapid shift in what it means to be “at work”. With the increase in mobile technology and therefore flexible working arrangements – such as working from home or departing from the traditional 9-to-5 schedule – the line between work time and personal time is becoming more and more blurred. Combined with the vast increase in number of employees working from home during the COVID-19 pandemic, now is an opportune time for federal and provincial parliaments to address the question again.

Bill 492, recently introduced in Québec, would require employers to establish an after-hours disconnection policy that applies to every employee, specifying the hours during each week where employees would be entitled to disconnect from all work-related communications. The policy would also need to provide protocol for use of work-related communication tools after hours and be posted in a clearly visible location and accessible to all employees. Contravening these requirements would be punishable by monetary fine, doubling for subsequent offences.

While we don’t have anything similar on the table in Ontario, section 18 of the Employment Standards Act (ESA) requires employers to give employees a period of at least 11 consecutive hours free from performing work in each day. That requirement can only be suspended in “exceptional circumstances”: to deal with emergencies, carry out urgent repair work, or where there are unforeseen circumstances, to ensure the continued delivery of essential public services or that continuous processes or seasonal operations are not interrupted.

Employers should not have the right to demand time and attention from their employees while they are away from work, except for in extraordinary circumstances. This principle seems to be supported by section 18 of the ESA, but unfortunately, the provision can be interpreted very broadly by employers. The first few times an employee needs to reply to a text from their manager, it presents little issue – after all, it’s just a few minutes here and there, and the situation warrants the urgency. The employee understands and perhaps even empathizes with their manager’s difficult situation. But as time goes on, the employer becomes accustomed to the employee’s responsiveness, and creates the expectation for employees to be responsive regardless of urgency. Employers justify this by claiming that they cannot always predict when work will need to be done, that business does not stop at the end of the work day, or that managers that work longer hours need answers from their employees. Nearly one-fifth of employers who responded to ESDC’s survey justified their opposition to “right to disconnect” legislation by stating that employees should be flexible to work whenever necessary.

The crucial problem with such a stance is the imbalance of power between employers and employees. Employers hold the power to decide what is “necessary”. Most workers feel pressured to accede to their employers’ whims to retain their manager’s favour or for fear of reprisal, such as being replaced or having their hours reduced. As a result, they tolerate steadily worsening conditions, lower wages, and tolerate labour standards violations to maintain their job security. There is a growing proportion of workers in the new generation of employees who have no access to collective bargaining, and who subsequently struggle to raise their concerns at work. If statutory labour standards are not properly followed and enforced, employees have very few options to resolve the matter within the workplace.

Previously, Ontario’s Bill 148 introduced a provision to the ESA that would allow employees the right to refuse requests to work if they were scheduled with less than 96 hours’ notice. Along with other amendments that helped employees set boundaries to what their employers could demand from them as well as increases to minimum wage, vacation entitlements, equal pay rules, and paid sick days, the majority of Bill 148 was repealed by the Ford government, caving to pressure from employers and corporations, less than a year later. Corporations with hundreds of employees and vast resources will always be willing to replace employees or move their operations elsewhere in the name of increased profits. To equalize this imbalance, governments must introduce legislation to properly protect workers’ rights as they relate to employment standards – to draw the line, so to speak.

The ESA makes it clear that “working” and being “on call” are distinct. When an employee is on call, they are available to be summoned to work, but are not actually working. On which side of the line would responding to work communications fall? We may find context in other employment legislation such as the Workplace Safety and Insurance Act. Specifically, the phrase “arising out of and in the course of employment” is one that has been well-defined by case law. Countless workplace injury claims and appeals have examined what it means for an employee to be “working”. The general consensus is that while an employee may have regular working hours and a regular workplace, it is reasonable to conclude that employees injured in the course of work duties (or reasonably incidental duties) while “off the clock” are still entitled to compensation. The threshold therefore seems to be whether the employee is engaged in the execution of work-related duties. Responding to work-related communications, especially on devices issued by an employer, would certainly meet that threshold.

Over time, the conflict between work and life causes stress and burnout in employees, which reduces productivity and can lead to lasting health issues. Working from home has been an increasingly prevalent trend in recent years, but with the pandemic and stay-at-home orders, many more employees are now experiencing what it means to mix home and work life. There may be pressure to work longer hours or to be more productive to prove that they are still capable of performing their duties despite being absent from the office.  Setting and adhering to clear boundaries is crucial to mitigating mental health risks. The “right to disconnect” may seem intrinsic now, but with the increase in technology in the workplace, it is more important than ever to set boundaries early and to protect that right for employees. It will not only lead to increased job security for workers but also increased productivity and employee happiness in the long-term.

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