Canadian Lawyer

March 2022

The most widely read magazine for Canadian lawyers

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24 www.canadianlawyermag.com off to the next workday. Bosses, also working from home, have been pulled into this world of increasingly blurred lines and managers wanting answers to their requests. So, in some ways, it was no surprise when the Ontario legislature passed Bill 27, which amends Ontario's Employment Standards Act to help employees disconnect from the office. (It also bans employers from entering into non-competition agreements with their employees, but that's another story.) Many E.U. countries have developed "right to disconnect" laws, such as France (2017), Italy (2017), Spain (2018) and Belgium. Germany has taken a self-regulation approach, which has led to some extreme examples of disconnecting. One German company shuts down its email servers at 7 p.m. until the next day. More recently, Ireland, Por tugal, Slovakia, Chile and Argentina have made moves to introduce similar rules. And the idea found its way into Canada, with a failed private member's bill attempt in Quebec a couple of years back and the federal govern- ment establishing a committee on the issue in 2019. With royal assent given to the Employment Standards Act amendments in December, Ontario has become the first province to enact a right-to-disconnect law in Canada. There is no question that the concept of the right to disconnect has captured the attention of employees who have experienced a blurred line between work and personal time, and of employers who are seeing a rise in employee burnout. A recent KPMG survey in Canada of more than 1,000 Canadians in early November found that 70 per cent believed governments should require employers to have right-to-disconnect policies. But this new law could also potentially be a case of the old axiom "Be careful what you wish for — you just might get it." Kathleen Chevalier, at Stikeman Elliott LLP in Toronto, says the Ontario law, "which has a noble purpose of giving people work-life balance," could end up having the opposite effect if employers were to impose "strict lines." She notes that many work- places have always been flexible in allowing time off during regular work hours to deal with personal matters such as medical and dental appointments, comfortable that their employees would make up for that time after hours. "It could become an interesting conun- drum," Chevalier says, especially if employers who know they can't expect employees to work beyond the traditional workday instead force them to take vacation time, sick leave or unpaid leave to handle personal matters. Lisa Cabel, national leader of employ- ment and labour law at KPMG Law, says most governments responsible for employee rights in the U.S. and Canada have, until now, thought the idea of the right to disconnect could be established and maintained through existing employment standards legislation. "We were sort of managing with those tools, but I think, with COVID-19, it's because we're no longer capable of moni- toring when people are logging on and off and how they're working in the same way that historically we have been able to," she says. "So, I do think the pandemic has elevated and accelerated the conversation." She adds that Bill 27 "establishes land- mark laws for a changing workplace reality." But what exactly does this new right- to-connect law require employers to do? So far, the answer could be "not much." The new section of the act states that any employer with 25 or more employees as of January 1 of any year must have a written policy in place for all employees "with respect to disconnecting from work that includes the date the policy was prepared and the date any changes were made to the policy." Employees, including new employees, must be provided with a copy of the policy, as well as any updated version of the policy after changes are made. "The Ontario law imports a view of work-life balance that is tied to a traditional workday, which might not be as reflective of the workplace climate going forward" Kathleen Chevalier, Stikeman Elliott LLP WHAT IS THE RIGHT TO DISCONNECT? Workers have the right not to respond to electronic or telephone communications after the workday ends. It protects employees from retaliation if they do not respond to work-related communications after work hours. It forces employers to respect a worker's free time. Penalties or reprisal could include fines; this varies by jurisdiction. LEGAL REPORT LABOUR AND EMPLOYMENT

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