On March 22 2018 Bill 1097: the Right-to-Disconnect Act was introduced by member of the national assembly Gabriel Nadeau-Dubois, but was overshadowed by the introduction of Bill 176: an act to amend the act respecting labour standards and other legislative provisions mainly to facilitate family-work balance.

This update provides an outline of Bill 1097 and identifies potential issues for employers.

Bill 1097

Bill 1097 is largely inspired by legislation that has been in force in France since January 1 2017. Its stated objective is to ensure that employee rest periods are respected by requiring employers to adopt an after-hours disconnection policy.

The after-hours disconnection policy must determine, at a minimum:

  • the weekly periods in which employees are entitled to disconnect from all work-related communications; and
  • the protocol for use of communication tools after hours.

Employers with 100 or more employees

For companies with 100 or more employees, the disconnection policy must be developed by a joint committee of at least six persons, at least half of whom represent the employees. In a unionised environment, employee representatives must be designated by the certified association or associations of employees, where an association is present.

In the event of disagreement regarding the content of the policy, an employer representative or employee representative may apply to the Commission des normes, de l'équité et de la santé et la sécurité du travail (CNESST) to designate a mediator. If the mediation fails, the CNESST may dictate the content of the policy in question.

Employers must report on the use of the communication tool and on the application of the after-hours disconnection policy no later than March 31 of each year, in addition to submitting the assessment to the committee members.

Employers with fewer than 100 employees

In the case of a company with fewer than 100 employees, the employer must develop the disconnection policy after consulting the employees or their representatives.

The policy will first be submitted to the CNESST for validation and approval. The CNESST may then ask the employer to modify it.

Every employer with fewer than 100 employees must review its disconnection policy at least every two years and resubmit it to the CNESST for approval.

Penalties

Bill 1097 contains penalties for contraventions. Under the bill, employers are liable to a fine if they fail:

  • to develop a disconnection policy; or
  • to produce an assessment of their policy (for employers with 100 or more employees).

The bill also provides that the CNESST may institute penal proceedings at its own initiative against the employer.

Exemptions

Bill 1097 provides that employers may ask the CNESST to be exempt from adopting a policy for some or all of their employees if they can prove that the employees in question do not use communication tools after hours in the course of their duties.

Comment

Although Bill 1097's objectives may seem legitimate, it could interfere with the development and modernisation of Quebec workplaces which are characterised by – among other things – the breakup of the traditional format (ie, a physical presence in a specific place). For example, how would a disconnection policy be applied as telework continues to grow in the Quebec labour market?

Another consideration is whether imposing a disconnection policy would throw up a significant barrier to certain measures intended to facilitate work-family balance. For example, some employers allow employees to leave early in order to meet family obligations and then resume their work activities later in the evening.

In short, implementing a disconnection policy could encourage the culture of presenteeism (or face time) at the expense of efficiency and new ways of working, as well as put more pressure on employees who are subject to stricter work schedules. In addition, although Bill 1097 allows for certain exemptions, each employer's circumstances differ when it comes to the use of communication tools (depending on, for example, the industry, number of employees, type of clientele and whether the business is international), and the bill does not account for these variables.

For further information on this topic please contact Paul Côté-Lépine or Antoine Guilmain at Fasken by telephone (+1 514 397 7400) or email (pcote@fasken.com or aguilmain@fasken.com). The Fasken website can be accessed at www.fasken.com.

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