Introduction
How is "electronic monitoring" defined by Bill 88?
What do the electronic monitoring provisions mean for an organisation?
What must an electronic monitoring policy include?
Does an electronic monitoring policy apply to all of an organisation's employees?
Do the electronic monitoring provisions impact other sections of the ESA?
How is the 25-employee threshold counted?
How long does an organisation have to keep a copy of a written policy on electronic monitoring?
Is there a deadline for when an organisation's policy must be in place?
Does an organisation need to provide employees with a copy of the written policy?
Can employees complain about an organisation's written electronic monitoring policy?


Introduction

Bill 88 was passed into law on 11 April 2022. Among other things, Bill 88 adds new provisions to the Ontario Employment Standards Act 2000 (ESA). Based on these amendments, Ontario employers with 25 or more employees are now required to have a written electronic monitoring policy in place by 11 October 2022. This article sets out further details on this ESA amendment through a series of frequently asked questions below.

How is "electronic monitoring" defined by Bill 88?

"Electronic monitoring" is not defined by Bill 88. However, government guidance states that electronic monitoring "includes all forms of employee and assignment employee monitoring that is done electronically".

Examples of electronic monitoring include GPS tracking of a delivery vehicle or tracking websites an employee visits during working hours.

Further, the scope of an electronic monitoring policy is not limited to employer-issued devices/equipment or monitoring that occurs while at the workplace. A written policy must capture whether an employer electronically monitors an employee's use of a personal computer for work. The policy also applies whether work is conducted at the workplace, the employee's home or in a hybrid setting.

What do the electronic monitoring provisions mean for organisations?

Bill 88 does not create a right for employees not to be electronically monitored by their employer, nor does it establish any new privacy rights. Rather, it requires that employers be transparent as to whether they are electronically monitoring their employees. If employers do electronically monitor employees, the written policy must:

  • describe how the monitoring occurs, and in what situations; and
  • explain the purposes for which the information obtained through electronic monitoring may be used.

What must an electronic monitoring policy include?

Government guidance stipulates that an electronic monitoring policy must include:

  • a statement confirming whether the employer electronically monitors employees;
  • if so:
    • a description of how employees are electronically monitored;
    • a description of the circumstances in which the employer may electronically monitor employees; and
    • for what purposes the employer may use the information collected through electronic monitoring; and
  • the date the policy was prepared and the date any changes were made to the policy.

Does an electronic monitoring policy apply to all of an organisation's employees?

The policy must apply to all of the employer's employees who work in Ontario, including full-time, part-time, casual and assignment employees. However, an employer is not required to have the same policy for all of its employees. Instead, an employer can create different policies for different groups of employees.

Do the electronic monitoring provisions impact other sections of the ESA?

There is nothing in Bill 88 to indicate that electronic monitoring policies will impact or replace other ESA provisions.

How is the 25-employee threshold counted?

Only those employers who employ 25 or more employees in Ontario on 1 January of any year are required to have a written policy on electronic monitoring. This considers all of the employer's Ontario employees, even if they are working at separate locations. For example, if an organisation has two locations with 15 employees each, there are 30 employees total and so a policy must be in place at each location.

How long does an organisation have to keep a copy of a written policy on electronic monitoring?

A copy of every written electronic monitoring policy must be kept for three years after the policy is no longer active.

Is there a deadline for when an organisation's policy must be in place?

For 2022, employers will have until 11 October 2022 to have a written electronic monitoring policy in place. Beginning in 2023, employers who employ 25 or more employees on 1 January 2023 will be required to have a written policy in place before 1 March 2023.

Does an organisation need to provide employees with a copy of the written policy?

With respect to existing employees, employers must also provide a copy of the written electronic monitoring policy within 30 calendar days of:

  • the day the employer must have the policy in place; or
  • an existing policy being changed.

With respect to new employees, the employer must provide a copy of the written policy within 30 days of the later of either:

  • the day the employer must have the policy in place; or
  • the day the individual becomes an employee of the employer.

A printed or electronic copy of the policy may be provided to employees. If providing an electronic copy such as an email attachment or an online link, employers must ensure that the employee has access to a printer.

Can employees complain about an organisation's written electronic monitoring policy?

An employee can make a complaint to the Ministry of Labour, Immigration, Training and Skills Development or an employment standards officer, if there is an allegation that the employer has not implemented a written policy or provided a copy of it within the required timeframe.

For further information on this topic please contact Lisa Cabel or Richelle Pollard at KPMG Law by telephone (+1 416 777 8000‚Äč) or email ([email protected] or [email protected]). The KPMG Law website can be accessed at www.kpmg.com.