Canadian Lawyer

March 2022

The most widely read magazine for Canadian lawyers

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26 LEGAL REPORT LABOUR AND EMPLOYMENT circumstances, what will those circum- stances be, and how should they be applied? Will overtime be a factor? What are the fines or reprisals for employers who break the right-to-disconnect rules? "Clearly, the goal behind the Ontario legis- lation is to provide some sort of guardrails in terms of when employees have to be checking in on their computers and answering their employers on their devices, but we don't have a lot of guidance yet," Reid says. "It will be interesting to see how this all gets fleshed out, either in the regulations or in policy, and frankly, how organizations choose to use the requirement to make a policy to provide some direction about what employers should be doing." She adds: "I'm working with clients right now, developing remote working policies, and one of the things that they really want to focus on is the expectations with respect to hours, when hours are worked, and responsiveness." Stikeman's Chevalier says finding the right balance between flexibility and the right to disconnect will be challenging. "What we've learned from COVID-19 is that many people don't want to be at home all the time, and they don't want to be at work all the time," she says, pointing out that the right to disconnect and flexibility might not go hand in hand. "You may want some flexibility . . . when you're working remotely, to attend a dental appointment, do grocery shopping, get some exercise," she says. "And the trade-off is that of the 10 tasks you were to complete during the day, two of them might shift to the evening. "What I find so interesting about this legislation is that notionally [it] should assist with work-life balance, and that's the inten- tion of it. But I think it 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." And depending on what the Ontario regu- lations look like in terms of offering excep- tions and flexibility, "it could have a chilling effect on the level of flexibility that people now really desire," Chevalier says. KPMG's Cabel agrees, noting that there are formal contracts between employers and employees and "psychological contracts" that include trust and flexibility. As we move toward a hybrid work environment, mixed in with the right-to-disconnect laws, "there's going to be a lot of training and conversations about what this all means for the workplace." Frank Molnar, a partner at Field Law in Calgary, says Quebec and the federal government have looked at formalizing the right into disconnect into law, but he hasn't heard it come up as an issue in Alberta or other provinces. However, that doesn't mean it isn't a topical issue or that employers shouldn't consider the idea of a right-to-disconnect policy, even in the absence of legislation. "In light of what is happening in Ontario, there are many positive reasons why an employer should consider such a policy as a retention and recruitment tool, given that it promotes work-life balance," Molnar says. Additionally, if a company that falls under the Ontario legislation has offices in other provinces, it may choose to adopt the right-to-disconnect policy across the busi- ness "as a cultural thing, where the policy is the same for all." Blakes lawyer Reid says that as employers prepare for the June 2 deadline, it may be difficult to create a perfect one-size-fits-all policy without more detailed regulations. "Will there be a delineation between managerial employees versus non-manage- rial employees? If overtime is involved, is it daily? Is it weekly?" she says. "Right now it's all very aspirational, which is great. But it will also be challenging to find a balance." ONTARIO'S 'RIGHT TO DISCONNECT' LAW Ontario passed Bill 27, Working for Workers Act, 2021, giving it royal assent on December 2. The law defines disconnecting from work as "not engaging in work-related communications, including emails, telephone calls, video calls or the sending or reviewing of other messages." Employers with more than 25 employees on January 1 of a given year must implement a policy by March 1 of the same year. The deadline for 2022 is June 2. As of its passing, there are no explicit requirements in the law as to what a policy must contain. The law reserves the possibility for the government to require specific information in the future. "Right now, the right to disconnect is all very aspirational, which is great. But it will also be challenging to find a balance" Holly Reid, Blake, Cassels & Graydon LLP

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