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A Costly Three Hours- Where the Right to Disconnect Might Become Expensive

The lines between work and home life tend to blur in a physical office space. Colleagues become friends and often socialize together after a long day at the office, and sometimes even beloved managers are included. When these relationships are so collegial, a manager might not think twice about asking an employee to stay a few minutes late to finish up a task, or the employee may even volunteer with little fanfare.

Now the virtual work environment has turned the regular office normalities on its head. COVID-19 lockdowns meant that many employees were forced to quickly fashion a home office, and those in small spaces had an incredibly difficult time separating their work and private lives. Suddenly a laptop and a second monitor were not a kind consideration from work, but now were often an intrusion on an employee’s living space. Moreover, some employers and employees understood or felt this to mean that they needed to be accessible 24/7, since working outside of normal hours only required the click of a button. 

The provincial government is now looking to reset the balance with their ‘right to disconnect’ policy requirement. As workplaces with more than 25 employees prepare to implement their respective policies there are some key considerations to keep in mind. Employers will have to adapt their performance measurements to account for this newly structured workday, and their failure to do so with some employees can become an expensive proposition.  

The Right to Disconnect

The right to disconnect was first introduced last in the Fall of 2021 under the umbrella of the WORKING FOR WORKERS ACT. As of June 2, 2022, workplaces with 25 or more employees will need to implement a policy that allows workers to ‘disconnect’ in their off-hours, with no expectations that they keep their laptop open or mobile accessible to answer that late-night email or respond to that early morning text message the moment that they first wake up. 

The move makes Ontario the first province to legislate such a policy. When it was announced, the government made it clear that the objective of the new law was to avoid employee burnout. Lockdowns during the pandemic saw many employees working at practically all hours, not because their role required it but rather it was almost impossible to ‘shut down’ entirely when work is never more than an arm’s reach away. 

Currently, the legislation is silent on what employers need to include in their Right to Disconnect policy. However, as employers begin to develop their policies, they have several priorities to consider. 

Performance Management

The shift to large-scale work-from-home has meant a change in how employers assess and issue discipline. Without the same physical oversight, employers have been forced to implement metrics to determine whether work is getting done, and how well it is being done. While workers are going to be entirely within their rights to disconnect at the end of the workday, many have expressed concerns that employers will wrongly view that as weakness, or a lack of ambition. Conversely, the legislation may inadvertently place pressure on other workers, who now feel increased pressure to perform within tight timelines. Workers who may have once been comfortable putting in extra hours will now be advised not to do so and may become anxious at the thought of leaving work incomplete when signing off for the day. Employers will need to draft a policy that clearly defines their expectations for workers while also complying with the spirit of a Right to Disconnect policy. 

Aside from the discipline and mental health considerations, there is another scenario where the right to disconnect may become expensive if not enforced strictly. 

What About the Three Hour Rule?

Alongside the right to disconnect, the EMPLOYMENT STANDARDS ACT also mandates that employers follow the “Three Hour Rule.” The Three Hour Rule (section 21.2) states that “if an employee who regularly works more than three hours a day is required to present himself or herself for work but works less than three hours, despite being available to work longer, the employer shall pay the employee wages for three hours” based on the amount that they worked, as well as regular wages for the rest of the three hours. 

The Rule, for the most part, is intended to protect shift or hourly workers who would often be called in and then sent home if there was not enough work for them. It is, however, in place broadly, which includes employees working from home, and will include employees who will soon be allowed to disconnect after working hours. In other words, the Rule and Policy suggest that if an employee takes a phone call or responds to an email after their day is done, the employer may owe them a full 3 hours’ wages. Employers will need to be clear within their policy that such response by an employee is not required.  

The application of the Three Hour Rule may be a remote risk, and will only apply to hourly employees and not salaried ones, but employers need to keep in mind as they draft their Right to Disconnect policy. These policies need to follow the law, but should also take into account the nature of each particular workplace. Employers will need to balance ensuring that their business objectives are met while still allowing employees the freedom to not work around the clock.

Final Thoughts

It can be challenging for employers when there is a significant change in employment law, and even more challenging when it is unclear what impact that change will have or how it will be implemented. While ambiguity in the law may be intended to help employers, it can undoubtedly make things more confusing when employers are seeking guidance on how to comply.

Luckily, we can help. Our EMPLOYMENT LAW TEAM is well-versed in the latest legal standards, and we routinely draft legally compliant policies for employers in the Cambridge, Kitchener, and Waterloo regions. CONTACT US TODAY to set up a consultation.