Disconnecting from work – that is, the ability to enjoy true "off hours" – is an increasingly important topic in employment law. In late 2021, Ontario created a statutory requirement for provincially regulated employers to establish a policy regarding disconnecting from work, and the federal government is now consulting with various stakeholders as it creates a similar plan that would apply to federally regulated employers (eg, banks, airlines, telecommunication businesses, radio and television broadcasters, and grain elevators). On 10 February 2022, the federal minister of labour received the Right to Disconnect Advisory Committee's final recommendation report.
The Committee was comprised of members of the federal government, several different employer associations, unions and non-governmental organisations (NGOs), and their report identified agreement on several general points, including:
- employees should be paid for work performed;
- establishing a positive work-life balance is a key goal of both employers and workers;
- the need for flexibility for both workers and employers;
- the need to protect health and safety, and there are some situations where communication with employees is critical;
- the need to recognise existing arrangements, such as collective bargaining relationships;
- absolute limits (eg, shutting down email servers or network access) may not be realistic in some situations; and
- the need to protect workers' privacy and security.
The Committee also noted several significant disagreements on their recommendations. The first revolved around the creation of a statutory right to disconnect. Union and NGO representatives recommended that the federal government adopt a legislative requirement to establish a right to disconnect policy in the workplace. Employer representatives, on the other hand, opposed this stance and instead recommended that the federal government should encourage parties to develop policies that ensure proper work-life balance for employees, as statutory requirements may eliminate the flexibility necessary to do business with provincially-regulated sectors and other organisations throughout the world. It was also noted that the creation of a statutory right to disconnect could impact other rights and privileges that are already provided to employees, such as flexible work arrangements.
The Committee was able to provide a joint recommendation in the event that the federal government does opt to legislate a statutory right to disconnect – namely, that any right to disconnect should nevertheless ensure that employers are able to contact workers in emergency situations, and to communicate critical health and safety information as required.
The Committee disagreed on the concept of "deemed work" – in essence, what activities are considered work and what it means to be at work. Employer representatives recommended that deemed work be addressed in a separate consultative process, as it is a separate issue from the right to disconnect and deemed work may have significant impacts on employers and the workplace and must be given its own focus and debate. Unions and NGOs recommended that a legislative definition of deemed work should be created alongside the statutory right to disconnect.
Finally, with respect to implementation, employer representatives recommended that careful consideration be given to the new administrative burden on employers as they struggle with the pandemic and its continued economic ramifications on businesses. Union and NGO representatives, on the other hand, said implementation needs to balance the economic interests of employers with the financial struggles that many workers are facing and their need to be paid for the work that they do.
The federal government is considering all recommendations put forward by the Committee and is currently developing its plan for a right to disconnect policy in Canada.
For further information on this topic please contact Lisa Cabel or Eren Erinc at KPMG Law by telephone (+1 416 777 8000) or email ([email protected] or [email protected]). The KPMG Law website can be accessed at www.kpmg.com.