Written By Christine Plante and Carl Cunningham
The "right to disconnect" refers to an employee's ability to not engage in work-related communications (emails, texts, telephone calls, video calls, etc.) while off duty.
The right to disconnect is no longer a novel concept, but after emerging in France in 2017, it is increasingly part of the global workplace discussion. It may have found its foothold in Canada with Ontario's Bill-27: the Working for Workers Act 2021, which requires provincially-regulated employers in Ontario with 25 or more employees to have a written right to disconnect policy by June 2, 2022. Bennett Jones has written on this development in a previous blog, Ontario Bill 27: Working for Workers Act, 2021 is Now the Law. Most recently, the Right to Disconnect Advisory Committee has issued its final report to the federal Minister of Labour that includes recommendations of potential interest to federally regulated employers.
Final Report of the Right to Disconnect Advisory Committee
Disconnecting was first proposed as an addition to the Canada Labour Code to address concerns relating to employee mental health approximately four years ago. However, after a one-year consultation, the advisory committee gave a thumbs-down to proposed legislative changes. While there was general consensus that some parameters should be placed on work-related communication outside regular work hours, there was strong opposition to mandated restrictions.
This issue remerged, with Canada's then-Minister of Labour Filomena Tassi pointing to the COVID-19 pandemic as a reason to reprioritize the right to disconnect, and the Right to Disconnect Advisory Committee was formed to provide recommendations to the Minister on how to implement this workplace mandate.
The Committee undertook consultations with federally regulated employers, unions and other non governmental organizations throughout 2021, and issued its final report in February 2022. The report outlines a series of recommendations, which reflect both the unique perspectives of committee members and areas of consensus, including the following areas of consensus:
- Employees should be paid for work performed;
- Establishing a positive work-life balance is a key goal of both employers and workers; and
- There is a need for flexibility for both workers and employers.
Implementation and Promoting Work-Life Balance
While there was consensus on several broader goals, there was substantial divergence on how the government should implement the right to disconnect.
Unions and NGOs generally supported a robust, legislative requirement for an enforceable right to disconnect policy. Employer groups, on the other hand, generally advocate for a flexible policy to promote work-life balance for employees, while still acknowledging the realities of their often 24-hour operations. Employer groups point to existing hours of work restrictions in the Canada Labour Code and collective bargaining agreements and caution that a strict right to disconnect law could have unintended consequences that limit the flexibility employees already enjoy and cause supply-chain delays and other operational interruptions to the highly interconnected, 24/7, global economy.
The federal government is considering all recommendations made by the Committee and intends to bring forward a plan for a right to disconnect policy applicable to federally regulated workplaces.
In the interim, there is no legal obligation for federally regulated employers to adopt a right to disconnect policy. However, your organization may want to consider if it wishes to voluntarily adopt some form of right to disconnect policy or charter. In recent years, but particularly during the pandemic, many Canadian employers are voluntarily implementing workplace policies, charters and mobile device agreements aimed to limit unnecessary after-hours emails and connectivity and maintain positive employee relations.
Members of the national Bennett Jones Employment Services group are pleased to discuss the impact of any right to disconnect legislation and develop workplace policies.