The past decade has been marked by the rise of hyperconnectivity, which affects a large number of individuals and is characterized by intensive use of digital technologies, often at the expense of our well-being and rest. Similarly, since the pandemic, remote work has become an integral part of professional life for many employees. These transformations have brought to light a major issue: the increasing difficulty for workers to disconnect from their jobs outside regular working hours.
In this context, the right to disconnect has become a central topic in discussions surrounding mental health, productivity, and work-life balance. Despite growing attention in public discourse, governments have shown limited willingness to legislate on this matter. To date, only the province of Ontario and the federal government have adopted binding measures related to the right to disconnect. Here is a brief overview of the current legal framework on this issue in Canada.
The applicable legal framework in Ontario
Amendments were made in December 2021 to the Ontario Employment Standards Act[1] (the “ESA”) to include new provisions regarding employee’s right to disconnect.
Section 21.1.1 of the ESA 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, so as to be free from the performance of work.”
The ESA now imposes the obligation to all employers that employ more than 25 employees to put in place a written policy for all employees with respect to disconnecting from work. The employer must give a copy of this policy to all employees[2]. The policy must be applicable to all employees, including management, executives and shareholders if they are employees under the ESA.
However, the ESA does not prescribe any minimum content requirements for such a policy. In the absence of supporting regulations, the content and scope remain at the employer’s discretion. Furthermore, there are no specific penalties outlined in the legislation for non-compliance with an employer’s own disconnecting-from-work policy.
The legal framework applicable at the federal level
In June 2024, the federal government took a significant step forward by adopting Bill C‑69[3], which amends the Canada Labour Code[4] (the “Code”) to introduce a right to disconnect for employees in federally regulated sectors. These new provisions are expected to come into force sometime in 2025, at a date yet to be determined.
Unlike Ontario’s more flexible model, the federal legislation sets out specific requirements for the content of disconnecting-from-work policies.
In contrast to the Ontario model, the federal legislation outlines specific elements that the policy is required to contain, such as:
- a general rule respecting work-related communication outside of scheduled hours of work, including the employer’s expectations and any opportunity for employees to disconnect from means of communication;
- any exceptions to the rule and their underlying rationale;
- the effective date of the policy; and
- any other elements that may be prescribed by regulation[5].
Additionally, employers must consult employees or the union — if applicable — during the policy’s development or update, providing at least 90 days for feedback[6]. The policy may exclude managers and directors from its application[7]. Once finalized, the policy must be provided to all applicable employees[8].
Section 177.61 of the Code also provides that it is prohibited for an employer to intimidate, dismiss, penalize, discipline or otherwise take reprisals against an employee, or threaten to take any such action against an employee, because the employee:
- asks the employer to comply with the policy;
- makes inquiries about their rights under the policy;
- files a complaint under the policy; or
- exercises or attempts to exercise a right under the policy.
Moreover, the Code will provide additional protections to employees in the event that the employer does not comply with its disconnecting-from-work obligations.
The absence of an applicable legal framework in the other provinces
Apart from Ontario, no other Canadian province has yet adopted legislative measures regulating employees’ right to disconnect. Back in 2022, B.C.’s Ministry of Labour had expressly stated that the government had “no intention” of following in Ontario’s steps. Quebec’s Ministry of Labour gave the same answer in early 2023 when questioned on the subject, pointing out that out that Quebec’s Act respecting labour standards[9] already protects working hours, working time, rest periods and remuneration. Nonetheless, the Ministry recommended that employers and employees sit down to discuss disconnection as a means of implementing sound human resources management practices.
In addition, an opposing party of the current Quebec government has tried several times to get a new bill passed on the right to disconnect in the past few years, without any real interest or commitment from the government (in 2018, 2020 and 2021).
Practical Considerations for Employers
Employers under Ontario and federal jurisdiction must not only comply with the legal requirements applicable to them but also adapt their organizational culture to promote a respectful balance between work and personal life. It is expected that, once implemented, the federal legislation will serve as a benchmark and may trigger a ripple effect in other Canadian provinces.
Conclusion
The right to disconnect represents a significant milestone in the contemporary evolution of labor law. Legislative developments in Ontario and at the federal level reflect a movement towards better addressing issues related to mental load, psychological health, and work-time management. It will be important to closely monitor the implementation of federal provisions, as well as any potential provincial initiatives that may arise from them.
[1] L.O. 2000, chap. 41.
[2] Article 21.1.2 ESA.
[3] Bill no 69 (filed on June 24, 2024), 44e legislature, 1st session.
[4] R.S.C., 1985, c. L‑2
[5] Article 177.2 the Code (not in force).
[6] Article 177.4 the Code (not in force).
[7] Article 172.2 (2) the Code (not in force).
[8] Article 177.6 the Code (not in force).
[9] CQLR, c. N‑1.1.
